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SAS Trustee Corporation v Miles

SAS Trustee Corporation v Miles

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Case Copied 14 November 2018 45 min read

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HIGH COURT OF AUSTRALIA
KIEFEL CJ,
BELL, GAGELER, NETTLE AND EDELMAN JJ
SAS TRUSTEE CORPORATION APPELLANT
AND
PETER MILES RESPONDENT
SAS Trustee Corporation v Miles
[2018] HCA 55
14 November 2018
S260/2017
ORDER
1. Appeal allowed.
2. Set aside orders 1 and 2 of the order of the Court of Appeal of the Supreme Court of New South Wales made on 4 May 2017 and in their place order that the appeal to that Court be dismissed.
3. The appellant pay the respondent's costs of this appeal.

On appeal from the Supreme Court of New South Wales
Representation
N J Williams SC with T M Ower and S Palaniappan for the appellant (instructed by SAS Trustee Corporation)
D F Jackson QC with J M Morris SC and M J Weightman for the respondent (instructed by Cardillo Gray Partners)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

KIEFEL CJ, BELL AND NETTLE JJ. This is an appeal from a judgment of the Court of Appeal of the Supreme Court of New South Wales (Payne JA and Sackville A‑JA, Schmidt J dissenting)[1] allowing an appeal from a judgment of Judge Neilson of the District Court of New South Wales[2]. The issue is the meaning of the expression "incapacity for work outside the police force" in s 10(1A)(b)(ii) of the Police Regulation (Superannuation) Act 1906 (NSW) ("the Act"). In effect, the expression presents a constructional choice between two possibilities. Either it means incapacity for work outside the police force from a specified infirmity of body or mind determined to have been caused by being hurt on duty when a member of the police force – which is the meaning determined by Judge Neilson and Schmidt J – or it means incapacity for work outside the police force howsoever caused – which is the meaning ascribed to it by the majority of the Court of Appeal. As will be explained, context and purpose favour the former and it appears consistent with relevant extrinsic materials.
[1]Miles v SAS Trustee Corporation [2017] NSWCA 86.
[2]Miles v SAS Trustee Corporation (2016) 22 DCLR (NSW) 223; [2016] NSWDC 56.
Relevant statutory provisions
Section 3 of the Act establishes the Police Superannuation Fund ("the Fund"), which, subject to the Act, is under the control of the SAS Trustee Corporation ("STC"). It applies in respect of persons who became members of the police force before 1 April 1988[3]. The Fund is comprised of deductions of six per cent made from members' salaries under s 5, other deductions and payments under ss 5A and 20A, amounts appropriated from the Consolidated Revenue Fund under s 4 and other fees and moneys received by STC pursuant to the Act. The Act provides for defined benefits and s 4 requires that if at any time the amount of the Fund is insufficient to meet the superannuation allowances and other amounts payable under the Act, the amount…

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: [2018] HCA 55
Decision Date: 14 November 2018

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the SAS Trustee Corporation (STC) against a decision of the New South Wales Court of Appeal concerning the entitlement of a disabled police officer, Mr Miles, to an additional amount of his annual superannuation allowance. The dispute centred on the interpretation of section 10(1A)(b)(ii) of the *Police Regulation (Superannuation) Act 1906* (NSW), which provided for an increase in a disabled member's allowance commensurate with their incapacity for work outside the police force. Mr Miles sought this additional amount due to a supervening infirmity that increased his incapacity for work outside the police force, which had not been the subject of the initial certification or determination that he was incapable of performing his police duties due to being hurt on duty.

The central legal issue before the High Court was whether the "incapacity for work outside the police force" referred to in section 10(1A)(b)(ii) was limited to incapacity arising from the specified infirmity that caused the member to be certified as incapable of performing their police duties, and which had been determined to have been caused by being hurt on duty. Alternatively, the court had to consider whether this provision extended to incapacity for work outside the police force resulting from any supervening infirmity, regardless of whether it was caused by being hurt on duty or was the subject of the original certification. This required an examination of the statutory language, the context of the provision within the Act, and the principles of statutory interpretation, particularly concerning cognate terms.

The High Court reasoned that, when interpreted in context and according to established principles of statutory construction, section 10(1A)(b)(ii) contemplates only one type of incapacity for work outside the police force. This incapacity must be the result of the specified infirmity of body or mind that was determined to have been caused by the member being hurt on duty. The Court emphasised that while a member's incapacity for work outside the police force is a relevant consideration for the additional amount, this incapacity must be linked to the original cause for which they were deemed disabled and received their superannuation allowance. The Court found that the wording of the provision, particularly when read alongside other related provisions and considering the legislative purpose, confined the entitlement to incapacity stemming from the initial "hurt on duty" event.

Consequently, the High Court allowed the appeal, setting aside the orders of the New South Wales Court of Appeal and dismissing Mr Miles's appeal to that court. The STC was ordered to pay Mr Miles's costs of the High Court appeal.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside orders 1 and 2 of the order of the Court of Appeal of the Supreme Court of New South Wales made on 4 May 2017 and in their place order that the appeal to that Court be dismissed.

3. The appellant pay the respondent's costs of this appeal.

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

KIEFEL CJ, BELL AND NETTLE JJ (dissent) GAGELER J EDELMAN J

So much may be accepted. But none of that does anything to lessen the force of the considerations already identified that point in favour of the conclusion that the only incapacity with which s 10(1A)(b)(ii) is concerned is incapacity from a specified infirmity of body or mind caused by a member being hurt on duty when a member of the police force. Granted, once a member has been certified under s 10B as incapable of exercising the functions of a police officer, an annual superannuation allowance becomes payable and any application thereafter for a variation of amount will entail a separate consideration. But it remains that what is to be considered is the effect on the member of the infirmity which rendered the member incapable of exercising the functions of a police officer.Conclusion and orders In the result, it should be held that, upon the proper construction of s 10(1A)(b) of the Act, the expression "member's incapacity for work outside the police force" means the member's incapacity from a specified infirmity of body or mind determined pursuant to s 10B or on appeal to have been caused by the member being hurt on duty when he or she was a member of the police force. The appeal should be allowed. Orders 1 and 2 of the Court of Appeal of the Supreme Court of New South Wales made on 4 May 2017 should be set aside and in their place it should be ordered that the appeal to the Court of Appeal be dismissed. The appellant is to pay the respondent's costs of the appeal to this Court. Statutory construction is the process by which meaning is attributed to statutory text[26]. In a doubtful case, it involves constructional choice[27]. The statutory text must be considered from the outset in context[28] and attribution of meaning to the text in context must be guided so far as possible by statutory purpose[29] on the understanding that a legislature ordinarily intends to pursue its purposes by coherent means[30]. [26]Thiess v Collector of Customs (2014) 250 CLR 664 at 671 [22]; [2014] HCA 12.[27]SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936 at 944 [38]; 347 ALR 405 at 415; [2017] HCA 34.[28]CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2.[29]Thiess v Collector of Customs (2014) 250 CLR 664 at 672 [23]; SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936 at 940-941 [14], 944-945 [39]-[41], [43]; 347 ALR 405 at 410, 415, 416.[30]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 [70]-[71]; [1998] HCA 28. Counsel for Mr Miles emphasised the naivety of thinking that s 10(1A)(b)(ii) of the Police Regulation (Superannuation) Act 1906 (NSW) ("the Act") is other than the product of industrial compromise. However, neither he nor counsel for the SAS Trustee Corporation ("STC") suggested that the industrial character of the sub‑paragraph warrants departure from any of those principles of statutory construction. Construction of s 10(1A)(b)(ii) is informed by the context of that sub‑paragraph within the second of two mutually exclusive streams of superannuation allowance for which the Act provides. Within that context, it is further informed by the extent to which textually available alternative constructions of the sub-paragraph contribute to the achievement by coherent means of the evident purpose for which that second stream of superannuation allowance is provided.

Ratio Decidendi

Legal Principle Established

Established by: GAGELER J, EDELMAN J

Taking those considerations together conveys that the preferable view of s 10(1A)(b)(ii) is that, like s 10(1A)(c), it contemplates only one kind of incapacity for work outside the police force, being incapacity the result of the specified infirmity of body or mind determined to have been caused by the member being hurt on duty when a member of the police force.Lembcke v SAS Trustee Corporation In Lembcke v SAS Trustee Corporation[15], the Court of Appeal of the Supreme Court of New South Wales rejected an argument that the "additional amount" payable under s 10(1A)(b)(ii) was subject to an implicit limitation that a disabled member receiving a superannuation allowance under s 10(1A) as well as earnings outside of the police force should not be better off than he or she would have been on his or her pre-disablement salary. The argument was in effect that s 10(1A) should be conceived of as having a hybrid character comprised of a purely superannuate automatic entitlement to 72.75 per cent and a further compensatory element for incapacity for work outside the police force of up to 12.25 per cent[16]. Santow JA held[17] that, regardless of its proper characterisation, s 10(1A) required no more than a consideration of what additional amount, in the opinion of STC, is commensurate, in the sense of proportionate, with the member's incapacity for work outside the police force. Meagher JA observed[18] in a similar vein that the "section requires … one question, and one question only, what is the applicant's incapacity for work outside the police force?" Ipp JA held[19] that s 10(1A) was plainly not compensatory and therefore the idea of an implied limitation fell away.[15](2003) 56 NSWLR 736.[16]Lembcke (2003) 56 NSWLR 736 at 746 [29] per Santow JA. See also at 739 [11]‑[13].[17]Lembcke (2003) 56 NSWLR 736 at 750 [48] (Meagher JA and Ipp JA agreeing at 737 [1], 751 [54]).[18]Lembcke (2003) 56 NSWLR 736 at 738 [4].[19]Lembcke (2003) 56 NSWLR 736 at 751-752 [56]-[57] (Meagher JA agreeing at 737 [1]). In this case, Sackville A-JA invoked Lembcke as support for the idea that the construction of s 10(1A) for which the respondent contended should not be rejected simply because it produces what might be thought to be anomalous results[20]. Likewise, in submissions before this Court, the respondent invoked Lembcke in support of his submission that the construction of s 10(1A) for which he contended is consistent with the superannuate nature of a fund into which members pay contributions to ensure that if they are "hurt on duty" and in consequence lose their careers in the police force, they are thereafter provided for with superannuation benefits at a level commensurate with their ability to work outside the police force.[20]Miles v SAS Trustee Corporation [2017] NSWCA 86 at [55]‑[56]. Apart from making clear, however, that s 10(1A) is to be construed in accordance with its terms rather than according to preconceptions about underlying policy, Lembcke really takes the matter no further. Plainly enough, s 10(1A) provides for benefits commensurate with the extent to which a member is incapacitated for work outside the police force. But the question remains whether, upon its proper construction, s 10(1A) confines those benefits to incapacity for work outside the police force the result of an infirmity caused by injury sustained in the course of duty. And for the reasons given, it should be concluded that it does. Legislative history and extrinsic materials