SAS Trustee Corporation v Patterson - [2010] NSWCA 167

NEW SOUTH WALES COURT OF APPEAL

CITATION:
SAS Trustee Corporation v Patterson [2010] NSWCA 167

FILE NUMBER(S):
2009/298573

HEARING DATE(S):
6 July 2010

JUDGMENT DATE:
15 July 2010

PARTIES:
SAS Trustee Corporation (Appellant)
Trevor Hilton Patterson (Respondent)

JUDGMENT OF:
Allsop ACJ Campbell JA Handley AJA

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2009/34

LOWER COURT JUDICIAL OFFICER:
Quirk DCJ

LOWER COURT DATE OF DECISION:
10 September 2009

COUNSEL:
Mr T Ower (Appellant)
Dr C Birch SC (Respondent)

SOLICITORS:
SAS Trustee Corporation (Appellant)
Walter Madden Jenkins (Respondent)

CATCHWORDS:
APPEAL – statutory appeal – District Court Act 1973, s 142N – party aggrieved by an award of the District Court in point of law
SUPERANNUATION – police superannuation – entitlement to additional amount of annual superannuation allowance – Police Regulation (Superannuation) Act 1906, s 10(1A)(b) – disabled member of the police force – benefits – no requirement to make application for payment and no time constraint prior to 30 June 2006
STATUTES – interpretation – Police Regulation (Superannuation) Act 1906 – effect of s 10(1BA) inserted by the Superannuation Legislation Amendment Act 2006 – right accrued before the date of its operation – no contrary intention to affect accrued rights – construction in accordance with the Interpretation Act 1987, s 30(1)(c)

LEGISLATION CITED:
District Court Act 1973 (NSW), s 142 G, J, M, N
Interpretation Act 1987 (NSW), s 30(1)(c)
Police Regulation (Superannuation) Act 1906 (NSW) ss 1, 3, 10, 10(1A), 10(1BA), 16A, 21
Superannuation Legislation Amendment Act 2006 (NSW)

CATEGORY:
Principal judgment

CASES CITED:
Maxwell v Murphy [1957] HCA 7; 96 CLR 261
Rodway v The Queen [1990] HCA 19; 169 CLR 515
Victrawl Pty Ltd v Telstra Corporation Ltd [1995] HCA 51; 183 CLR 595

TEXTS CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2009/298573
ALLSOP ACJ
CAMPBELL JA
HANDLEY AJA
Thursday 15 July 2010

SAS TRUSTEE CORPORATION v PATTERSON

Judgment

ALLSOP ACJ: This is an appeal under the District Court Act 1973 (NSW), s 142N from proceedings in the District Court’s residual jurisdiction under the District Court Act, s 142G by reason of proceedings heard by it under the Police Regulation (Superannuation) Act 1906 (NSW) (the “Act”), s 21. Relevantly, the appeal to this Court is given to a party aggrieved by an award of the District Court in point of law: s 142N(1). An “award” is defined in s 142M to include, amongst other things, an order, decision or determination.
The respondent (Mr Patterson) made an application for an additional amount of annual superannuation allowance under the Act. The appellant (the “STC”) which is a statutory corporation that controls and administers the Police Superannuation Scheme (the “Scheme”) under the Act (see in particular s 3) and cognate legislation, refused the application on the basis that it was out of time by reference to provisions of the Act.
The primary judge (Quirk DCJ) heard Mr Patterson’s complaint about the STC’s decision under an…

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: [2010] NSWCA 167
Decision Date: 15 July 2010

CaseChat Overview and Summary

The SAS Trustee Corporation (STC) appealed a decision of the District Court of New South Wales, which had set aside a decision of the STC and substituted its own determination. The dispute concerned Mr. Patterson's entitlement to an additional amount of annual superannuation allowance under the *Police Regulation (Superannuation) Act 1906* (the Act). Mr. Patterson, a disabled member of the police force, claimed this entitlement based on the Act as it stood prior to 30 June 2006.

The primary legal issues before the court were whether Mr. Patterson was entitled to an additional superannuation allowance as a disabled member of the police force, and whether the insertion of section 10(1BA) into the *Police Regulation (Superannuation) Act 1906* by the *Superannuation Legislation Amendment Act 2006* affected any accrued rights Mr. Patterson may have had prior to its commencement. Specifically, the court had to consider if there was a requirement for Mr. Patterson to make an application for payment or if there was a time constraint for such an application prior to 30 June 2006.

The court reasoned that section 10(1A)(b) of the *Police Regulation (Superannuation) Act 1906* provided for an additional amount of annual superannuation allowance for a disabled member of the police force. It found that, as the Act stood before 30 June 2006, there was no requirement for a disabled member to make an application for this payment, nor was there any time limit imposed. The court further held that the insertion of section 10(1BA) by the *Superannuation Legislation Amendment Act 2006* did not have retrospective effect so as to extinguish rights that had already accrued. Applying section 30(1)(c) of the *Interpretation Act 1987*, the court concluded that the amendment should not be construed to affect accrued rights in the absence of a contrary intention.

The appeal was dismissed, and the STC was ordered to pay Mr. Patterson's costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

ALLSOP ACJ

In making a determination under the Act, s 21 the primary judge’s task was given further content by the District Court Act, s 142J, which is in the following terms:“142J Decisions of Court when exercising residual jurisdiction(1)The following apply in the exercise of the Court’s residual jurisdiction: (a)a decision of the Court in any matter is to be on the real merits and justice of the case,(b) the Court is not bound to follow strict legal precedent,(c) subject to Subdivision 3: (i) a decision or proceeding of the Court is not vitiated by reason of any informality or want of form, and(ii) a decision or proceeding of the Court is not liable to be appealed against, reviewed, quashed or called in question by any court, and(iii) no proceedings, whether for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of any decision or proceeding of the Court relating to, or on the face of the proceedings appearing to relate to, any matter within its residual jurisdiction, and(iv) the validity of any decision or proceeding of the Court cannot be challenged in any manner.(2)Nothing in subsection (1) prevents the Court from reconsidering any matter that has been dealt with by it in its residual jurisdiction (or had been dealt with by the Compensation Court), or from rescinding, altering or amending any decision previously made or given by the Court in the exercise of that jurisdiction (or by the Compensation Court), all of which the Court has authority to do.(3)In this section, decision includes award, order, determination, ruling and direction.” The judge set aside the decision of the STC and in its place made a decision that the right of Mr Patterson to an additional superannuation allowance was to be determined by reference to the terms of the Act as they stood before 30 June 2006 without any relevant time limit as to the making of an application. In order to understand the decisions of the STC and the primary judge, the circumstances of Mr Patterson should be explained and the relevant provisions of the Act set out. Mr Patterson was born in 1946. He became a constable in the New South Wales Police Force in 1966 and thereupon became a contributor to the Scheme. On 27 June 2001, he was certified unfit for duty due to ischaemic heart disease, lymphedema of the left leg, obesity, hypertension and sleep apnoea. From July 2001 until November 2005, there was a dispute between Mr Patterson and the Commissioner of Police as to whether the infirmities which made Mr Patterson unfit for duty were caused by Mr Patterson being “hurt on duty” as that phrase is defined in the Act, s 1. Disputes took place in relation to this which led to proceedings being commenced by Mr Patterson in the District Court in 2005. Within those proceedings, Mr Patterson notified the STC that his application would be limited to determining whether infirmities of hypertension and personality of obsessive type associated with anxiety and depression were caused by him being hurt on duty. In 2005, the proceedings in the District Court were settled. Part of that settlement involved the Commissioner of Police issuing an amended certificate determining that the infirmities that I have just set out were caused by Mr Patterson being hurt on duty.

Ratio Decidendi

Legal Principle Established

Established by: ALLSOP ACJ

Full text does not contain this section.