SAS Trustee Corporation v Patterson

[2010] HCATrans 338

[2010] HCATrans 338

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S173 of 2010

B e t w e e n -

SAS TRUSTEE CORPORATION

Applicant

and

TREVOR HILTON PATTERSON

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

IN SYDNEY BY VIDEO LINK TO MELBOURNE

ON FRIDAY, 10 DECEMBER 2010, AT 11.32 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:    May it please the Court, I appear with my learned friend, MR T.M. OWER, for the applicant.  (instructed by SAS Trustee Corporation)

MR C.J. BIRCH, SC:   May it please the Court, I appear with my learned friend, MR M. KLOOSTER, for the respondent.  (instructed by Walter Madden Jenkins)

GUMMOW J:   Yes, Mr Walker.

MR WALKER:   Your Honours, in our submission, this case if it has any features that distinguish it from any ordinary case of statutory interpretation ‑ ‑ ‑

GUMMOW J:   Well, it has one feature to distinguish it.  Your client is a trustee, is it not?

MR WALKER:   Yes, your Honour.

GUMMOW J:   Well, it knows what its duties are.  It has been told by the New South Wales Court of Appeal.

MR WALKER:   Your Honour, a trustee is not disentitled, with respect, from raising on appeal a contention ‑ ‑ ‑

GUMMOW J:   No, the question is whether we should grant you leave.

MR WALKER:   Quite so, your Honour.  I entirely accept that.  That, in our submission, does not place us into a class disfavoured in relation to the grant of special leave, though, of course, it may be a relevant consideration, as indeed may be considerations such as the five days in question to which the Acting Chief Justice referred in the Court of Appeal.  The feature, however, which we would urge as that which may persuade your Honours ‑ ‑ ‑

GUMMOW J:   Who constitutes this body?

MR WALKER:   I am so sorry, your Honour?

GUMMOW J:   Who constitutes and controls your client?

MR WALKER:   Ultimately, it is ministerially controlled, your Honour.

GUMMOW J:   Yes.  The word “trustee” is used to give some colour which may not truly be deserved, I suspect.

MR WALKER:   Yes and yes are our answers to those questions.  Yes, your Honour.

GUMMOW J:   Yes, go on. 

MR WALKER:   The feature which we urge does make this case an apt one for special leave is the approach taken to the accrual of a right for the very important, indeed, fundamental canon which has been manifested in section 30 of the Interpretation Act in this State.  That canon is one of the many ways in which either as common law or under statute one can influence the interpretation of statutes with respect to what is sometimes called retrospectivity or retroactivity. 

The notion of non‑disturbance of accrued right, in this case without the complication of identifying fundamental ones or not, is, in our submission, a well‑established and very important tool in the judicial approach to statutes.  We accept that the fact that the ultimate substantive right to be paid pensions is entirely statutory in no way alters the importance of the issue from the point of view of members and when one adds the overlay appropriate in this case of them being pensions to members of the police service who are on duty, we accept that there is a heavy burden of persuasion in relation to the disturbance of ‑ ‑ ‑

GUMMOW J:   Let us get down to tintacks, Mr Walker.  What do you say is the error in the reasoning of the Acting Chief Justice at page 37, paragraphs 23 and following?

MR WALKER:   Can I go to page 36 to identify the error that we say informs it.  In paragraph 21, about line 45, his Honour characterises the matter as throwing this up, namely:

an existing right to have the STC consider his or her circumstances and form an opinion –

On the facts of this case it could not be said in the administrative law sense that there was any subsisting duty to consider the man’s application at all because there was no application.  There was nothing before those controlling my client which would render appropriate consideration of whether, let alone if so, how much, additional ought to be paid to Mr Patterson.  It is for those reasons, in our submission, that the identification of an existing right which is then, on page 37, treated as being accrued for the purposes of this approach to statutory interpretation, that the error comes in. 

The error comes in, in our submission, in a failure to give appropriate substantial meaning to the notion of that which is accrued.  In relation to a procedural right, that is, a right to be considered as opposed to a right to receive money, in our submission, it will not in any real sense be accrued until it can be said that the person who should consider is in a position where the consideration has become overdue, that the consideration should have occurred.  Otherwise, of course, everybody who on their first day of joining the police service would be in a position to say, unless the statute law changes, I will ultimately be in a position, God willing, to have consideration of such circumstances as may yet occur in the future, including, of course, those things which affect my incapacity for all other work. 

It is not to be forgotten that the consideration of an application for additional pension depends not only on having been hurt on duty, but also lacking capacity for other work.  The latter is a matter of accomplished history.  The former, however, in our submission, is one which will obviously be subject to successes or not of therapy and rehabilitation.  It is for those reasons, in our submission, that the notion of describing as an existing right Mr Patterson’s position before he had put anything forward for consideration by my client, cuts across any useful concept of a right being accrued.  In our submission, as we put it in writing, at best his position was inchoate.

GUMMOW J:   Wait a minute.  Page 36, paragraph 19, it is noted that your client accepted in argument that Mr Patterson did have a species of accrued right.

MR WALKER:   Yes.  What we can say about that is that the notion ‑ ‑ ‑

GUMMOW J:   This goes back to what I was putting to you earlier about your position, the public body called the trustee seeking special leave.

MR WALKER:   Yes, your Honour.  The record in paragraph 19 is of a concession that certainly did not say that this is governed by section 30, as I understand and am instructed concerning that position.  The concession was not that there was a right for consideration which already had to occur, but that there was by dint of circumstances a right when and if Mr Patterson chose to exercise it to have consideration.  It was accrued or a species of accrued right in that sense.  The argument before the court did not proceed on the basis that section 30 applied but rather, that the species of accrued right in question was not one to which section 30 spoke.  That is the main point, in our submission, for special leave, namely, that here is a treatment of the concept of accrued right which itself is very generally important in relation to both the drawing and interpretation of statutes which, in our submission, deprives it of any useful meaning.

The next point concerns that which one can see on page 37 in paragraphs 24 and 25 of the Acting Chief Justice’s reasons.  That, in our submission, perhaps should be characterised as a dealing with an argument which saw the argument as rather different from the way in which it should have been.  The argument is not that there was only retrospective operation to be seen in the new subsection 10(1BA) but rather, that by dint of the possibility thrown up by the word “or”, that there were retrospective operations contained within the words “literal operation”.  That is because, as your Honours have seen, the pension can be obtained in two tranches; the annual component, paragraph (a), and one or other, depending on degrees of incapacity, of the hurt on duty component, paragraphs (b) and (c). 

Paragraphs (b) and (c) can follow later and it is for those reasons, in our submission, that the arguments noted in paragraph 24 and dismissed in paragraph 25 is itself also an appropriate matter for special leave.  Where the literal meaning of words is such as to incorporate retrospective operation, then, in our submission, it takes little more in terms of the purpose of legislation to dis‑apply section 30 of the Interpretation Act as required by subsection 5(2) of the Interpretation Act. 

The reason why we make reference to the purpose of the legislation is that, manifestly, by reference to the twin requirements of age 60 and five years from retirement, manifestly, this is a scheme closing the provision and, in our submission, though too much should not be made of this, the argument that we were presenting was one which more effectively closes a scheme – much more effectively closes a scheme – than that which was held against us.

The final point we make concerns expanding the context of the provisions so as to include section 16A which, of course, was a recognition of cases which would otherwise perhaps attract the epithets capricious and arbitrary to which the Acting Chief Justice turned in paragraph 26 on page 38.  In our submission, where there are cut‑off lines by reference to dates, one will always be able to say that somebody is just in time or just too late.  That, in our submission, cannot alter the meaning of a cut‑off. 

Where there is a statute that has dealt with what might be a mischief arising from that, namely, by discretion to extend, then, in our submission, there is even less reason to reason as the Acting Chief Justice did in paragraph 26.  It is for those reasons, in our submission, that because of the importance generally speaking of understanding what is meant by an accrued right and because of the multiplicity of procedural as opposed to substantive rights in modern statutes bestowing and regulating benefits, that this is a case which is apt for a grant of special leave.  May it please the Court?

GUMMOW J:   Thank you.  We do not need to hear from you, Mr Birch.

In our view the decision of the New South Wales Court of Appeal on the question of statutory construction was correct.  Even if the matter had been more finely balanced this would not have attracted a grant of special leave, given the status and nature of the applicant corporation.  Special leave is refused with costs.

MR WALKER:   May it please the Court.

GUMMOW J:   We will adjourn to reconstitute.

AT 11.46 AM THE MATTER WAS CONCLUDED