South Australian Superannuation Board (Super SA) v McIntyre - [2015] SASCFC 57

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
SOUTH AUSTRALIAN SUPERANNUATION BOARD (SUPER SA) v MCINTYRE
[2015] SASCFC 57
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Nicholson)
28 April 2015
SUPERANNUATION - REVIEW OF DECISIONS
SUPERANNUATION - BENEFITS - MATTERS AFFECTING ENTITLEMENT TO AND PAYMENT OF - INCAPACITY
SUPERANNUATION - BENEFITS - MATTERS AFFECTING ENTITLEMENT TO AND PAYMENT OF - OTHER MATTERS
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES
Appeal from a judgment of the District Court sitting in its Administrative and Disciplinary Division. The appellant is responsible for the administration of the Southern State Superannuation Scheme, established by the Southern State Superannuation Act 1994 (SA) to provide members, being State Government employees, with various financial benefits consequent upon their employment. The respondent became a member of the Scheme by virtue of his employment as a part-time school groundskeeper with the Department of Education and Child Development for a period of time from May 2005 onwards. As a member the respondent was entitled to a basic invalidity insurance benefit in the event that certain circumstances, as prescribed by the Act, came about.
As of 13 July 2008 the respondent ceased performing work as a groundskeeper for the Department due, in part, to ongoing complications with a heart condition. In 2010, the respondent lodged a claim with the appellant seeking payment of the basic invalidity insurance benefit. The appellant declined the respondent’s claim on the basis that he had not ceased working on account of invalidity, but rather his incapacity for work arose after he underwent heart surgery in March 2009, being well after he had ceased his employment.
The respondent successfully appealed to the District Court against the refusal. The Judge held that the respondent’s employment had ceased by virtue of incapacity, that the employment was terminated on 13 July 2008 on account of invalidity, that the respondent is presently incapacitated to the extent of 60 per cent or greater and that this incapacity is “likely to be permanent” within the meaning of the Act. The Judge ordered that the respondent be paid the basic invalidity insurance benefit. The appellant appealed to this Court against the Judge’s order.
Held: Appeal dismissed.
By Nicholson J (Kourakis CJ and Stanley J agreeing):
1. The Judge erred in finding, on the evidence before him, that the respondent had satisfied all of the necessary requirements under the Act for the payment of the basic invalidity insurance benefit. The Judge failed to determine, and the respondent did not demonstrate, one of the essential legislative requirements, namely, that his employment was terminated by the employer as required by subsection 34(8)(a) of the Act.
2. The respondent satisfied all other requirements under the Act to entitle him to receive the basic invalidity insurance benefit. Nevertheless, the respondent’s failure to demonstrate that his employment was terminated by the employer would, ordinarily, be a sufficient basis on which to allow the appeal.
3. However, the failure to satisfy the requirement that the employment was terminated by the employer was not an issue raised and argued before the Judge, and the appellant should not be permitted to raise the issue for the first time on appeal. The appeal is dismissed on that basis.
By Kourakis CJ:
4. A number of the appellant’s grounds of appeal raise a question of fact and permission to appeal, as required by section 42E of the District Court Act 1991, should be refused.
Southern State Superannuation Act 1994 s3, s34, s40; District Court Act 1991 s42E, s42G, s43; Social Security Act 1947 (Cth), referred to.
McIntyre v South Australian Superannuation Board t/a Super SA [2014] SADC 63; Rohrlach v Christianos (1980) 26 SASR 161; Lucke v Cleary & Ors [2011] SASCFC 118; Skorpos & Anor v United Petroleum Pty Ltd [2013] SASCFC 117, considered.

SOUTH AUSTRALIAN SUPERANNUATION BOARD (SUPER SA) v MCINTYRE
[2015] SASCFC 57
Full Court: Kourakis CJ, Stanley and Nicholson JJ

KOURAKIS CJ. I gratefully adopt the summary of the facts and the litigation set out in the judgment of Nicholson J. I respectfully agree with his Honour’s construction and analysis of the applicable provisions of the Southern State Superannuation Act (1994) (the Act).
In the exercise of its jurisdiction, the Administrative and Disciplinary Division of the District Court (the ADD) is given a wide discretion with respect to the admission of evidence or material on which it is to make its decision. The Court is not bound by the rules of evidence but may inform itself as it thinks fit and must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.[1] Section 42G of the District Court Act 1991 (SA) provides that no order for costs is to be made in matters heard in the ADD unless an order is necessary in the interests of justice.
[1] District Court Act 1991 (SA) s 42E.
Appeals to this Court from the ADD require permission on questions of fact.[2] The public purpose sought to be achieved by the establishment of the ADD would be much undermined if questions of fact were to be appealed as a matter of course. It is important in considering whether or not to grant permission on a question of fact to have regard to the nature of the jurisdiction exercised by the ADD. Reviews on the merits, of administrative decisions of great public utility. Their utility is much diminished unless they are cost effective. Appeals to this Court add significantly to the costs of litigation, and on appeal to this Court a costs order will generally follow the event.
[2] District Court Act 1991 (SA) s 43.
The importance of exercising caution in the granting of permission to challenge determinations of facts made in the ADD are illustrated by the circumstances of this litigation. The amount in dispute is relatively small. If care is not taken, legal costs disproportionate to the value of the administrative decision can easily be incurred. Cost considerations no doubt influenced the decisions of the parties in this matter to proceed in the ADD on affidavits, without oral testimony, and with copies of the medical reports passing between Mr McIntyre’s treating doctors instead of forensic reports.
Against that statutory context I can deal briefly with each ground of appeal, paying particular regard to whether it is an appeal on a question of law or on a question of fact.
In my view grounds 1.1, 2.1 and 2.2 are appeals on a question of law because it is an error of law for a Judge to give inadequate reasons.
Ground 1.1 complains that the Judge did not adequately explain his reasons for finding that Mr McIntyre was dismissed by the Department of Education and Child Development (the Department) on 13 July 2008. For the reasons given by Nicholson J that ground should be dismissed as an abuse of process because the appellant accepted at trial that Mr McIntyre’s employment was terminated on 13 July 2008 and no issue was taken as to whether the termination was by the Department.[3]
[3] Appellant’s first instance submissions at [2], [6] and transcript of proceedings at 63.2-65.10, T19.1-15, T21.28-T22.1, T26.11-38, T37.24-29 and 34-37, T39.16-27.
Moreover, on the face of it, there was a tactical reason for the position taken by the appellant before the Judge. There was a deterioration of Mr McIntyre’s condition during 2008 after the termination of his employment. The appellant’s case that incapacity was not the reason for Mr McIntyre’s termination was stronger the earlier the date of the termination.
Appeal grounds 1.3 and 1.4 complain that the Judge should have found that Mr McIntyre’s employment was terminated by his resignation and not by the employer, or in the alternative that his employment expired through effluxion of time. These grounds raise, as questions of fact, just what words or conduct passed between Mr McIntyre and the Department shortly after he last performed any work, and a question of law, as to whether the Judge’s conclusion on the contractual consequences of that exchange were right. However, the appeal on these grounds must also be dismissed because of the appellant’s failure to raise the issue below.
Permission on grounds 1.3 and 1.4 should be refused for an additional reason. The conversation, as deposed to by Mr McIntyre, between him and the principal of the school support a conclusion that Mr McIntyre’s contract was not terminated but that he was given leave without pay for the remainder of the term of his contract. However, that was not the only evidence.
A Claims Management Termination Certificate (the Certificate) prepared by the Department in 2010 records the termination date as being 13 July 2008 and the reason for termination as “end of contract”. The termination of the contract in July 2008 is, of course, inconsistent with the effect of the conversation deposed to by Mr McIntyre.
Before this Court, and before the ADD, the Certificate was referred to as evidence that the Department subsequently treated the termination as having taken place on July 2008 and that it was therefore of no, or little, weight. That position fails to appreciate that the Certificate, whenever created, is an admission against interest as to the date of, and reason for, the termination. That is to say, the certificate is an admission by the Department that the contract did not expire by effluxion of time but was terminated. Moreover, before the Judge the appellant took the position that the reason that the contract was “early end dated” was not relevant and that it had not made any effort to ascertain how or why the Certificate was drawn as it was. I would not grant permission to appeal on the ground that complains that the Judge should have made a finding of termination by effluxion of time, when that finding is contrary to the Certificate produced by the Department. Nor would I give permission on the ground that the Judge should have found that Mr McIntyre had resigned when the appellant had made no effort to investigate the reasons for the making of the Certificate.
The complaint made by appeal grounds 2.1 and 2.2 is that the Judge did not make any reasoned finding as to the degree of incapacity suffered by the respondent at the time his employment terminated. The degree of incapacity at the time of termination was one of the primary issues before the Judge. The appellant contended before the Judge, as it did on appeal, that the evidence failed to establish that Mr McIntyre’s was partially incapacitated at the time of his termination.
The Judge stated his conclusion on the reason for the termination of Mr McIntyre’s employment as follows: [4]
I find that the appellant’s employment came to an end by virtue of his incapacity to continue in that employment, contrary to the information provided by DECS, upon which the respondent proceeded to determine the application, that is, that the appellant’s employment was terminated on account of invalidity.
[4] [2014] SADC 63 at [102].
That bare conclusion is not accompanied by any explanation. The Judge’s reasons are inadequate.
It follows that the appellant has demonstrated an error of law. It does not follow however that the proper disposition of the appeal is to set aside the order of the Judge. Pursuant to SCR 286(3) this Court may amend or set aside the judgment subject to the appeal and give any judgment that the justice of the case requires or remit the case, or part of the case for re-hearing or reconsideration.
In the ordinary course of an appeal on the ground of inadequate reasons a matter will be remitted for trial unless the appeal court is in a position to resolve for itself the factual or legal question which was inadequately explained. In this case the Court is in as good a position as the Judge to resolve the issue because the evidence is wholly documentary. No evaluation of the credibility or reliability of oral testimony is here involved.
For the reasons given by Nicholson J the evidence clearly establishes that Mr McIntyre was incapacitated at the time of the termination of his employment. The appeal on this ground must therefore be dismissed despite the Judge’s failure to give reasons for his finding.
Appeal grounds 2.4, 2.5 and 2.6 are appeals on a question of law in that they contend that the words “incapacitated for work” are a term of legal art. The only submission in support of that proposition was that the meanings attributed to the same phrase in the Social Security Act 1947 (Cth) should be given to the phrase in the Act. No attempt was made to examine the different statutory contexts. Nor did the appellant essay an explanation of the difference between the ordinary meaning of the phrase and its special statutory meaning, which bore on the facts of this case. The appeals on these grounds must also be dismissed.
Grounds 1.2, 2.3 and the paragraph immediately following ground 2.6 complain that the Judge’s finding of incapacity was wrong on the evidence before the Court. There is no reason not to give the words “incapacitated for work” in s 34(8) of the Act their ordinary meaning. Therefore those appeal grounds are on questions of facts. Permission to appeal should be refused given the summary way in which the hearing before the ADD Judge proceeded. In any event, as I have already observed, the Judge’s findings were amply supported by the evidence.
STANLEY J. I would dismiss the appeal. I agree with the reasons of Nicholson J.
NICHOLSON J.
Introduction
These reasons concern an appeal by the South Australian Superannuation Board from a judgment of the District Court sitting in its Administrative and Disciplinary Division. I would dismiss the appeal for the reasons that follow.
The appellant is responsible for the administration of the Southern State Superannuation Scheme established under statute to provide members, being State Government employees, with various financial benefits consequent on their employment relationship. Any member dissatisfied with certain decisions of the appellant is entitled to appeal to the District Court in its Administrative and Disciplinary Division.[5] A further appeal, by either party, lies to this Court. However, in the case of an appeal against a final judgment of the Administrative and Disciplinary Division of the District Court on a question of fact, permission is required.[6]
[5] Southern State Superannuation Act 1994, s40.
[6] District Court Act 1991, ss43(3).
The respondent to this appeal was employed by the Department of Education and Child Development (the Department) as a school groundskeeper over a period during and following 2005. The last day on which the respondent performed any work for the Department was 13 July 2008. At that time, the respondent was suffering from ill health. On 3 March 2009, the respondent underwent cardiac surgery which, in the main, was successful. However, he suffered quite severe complications including haemorrhaging of the adrenal glands. This led to acute adrenal insufficiency (managed with medication) and further ongoing physical and psychological complications. The respondent’s health has progressively deteriorated and he has not worked again, apart from some hours here and there on a volunteer basis but of no relevance to the present dispute.
As a consequence of his employment with the Department, the respondent became a member of the Southern State Superannuation Scheme which, at all times material to his employment, was regulated by the Southern State Superannuation Act 1994 (the Act).[7] As a member of the Scheme, the respondent accrued employee contributions, employer contributions and investment earnings which were preserved in the Scheme as a consequence of him ceasing to be employed by the Department.[8] In addition, by becoming a member of the Scheme, the respondent automatically became entitled to the basic invalidity insurance benefit[9] provided for by the Scheme, which would entitle the respondent to payment of an amount in the order of $51,000[10] in the event that certain circumstances, as prescribed by the Act, came about.
[7]    The 1994 Act was repealed and replaced by the Southern State Superannuation Act 2009 which received the Royal Assent on 11 June 2009 and commenced to operate (subject to transitional provisions) on 1 August 2009 (Government Gazette 23 July 2009, p3282).
[8]    One of the issues in this dispute concerns the date when the respondent’s employment came to an end and the circumstances in which, or manner by which, it came to an end. However, there is no dispute that it did come to an end.
[9]    Under the Scheme a member, upon payment of a premium by way of further pay deductions, could acquire an additional voluntary invalidity insurance benefit. The respondent did not do this.
[10] It is my understanding that, in the event such a benefit is found to be payable, a more precise calculation of the amount will need to be undertaken.
On 10 August 2010, the respondent lodged a claim with the appellant seeking payment of the basic invalidity insurance benefit and, on 17 September 2010, the respondent made a separate claim for the early release of his preserved superannuation account balance. In support of each application, the respondent asserted total and permanent disablement such that he was incapacitated from further work, on the basis of “adrenal insufficiency” first suffered on 3 March 2009.
On 16 February 2011, the appellant declined the respondent’s insurance claim on the basis that, in its view, he had not ceased his employment on account of invalidity but, rather, any incapacity for work arose after ceasing his employment and following the surgery which took place in March 2009, that is, well after the respondent ceased his employment.
On 17 November 2011, the appellant also refused the claim for early release of the respondent’s preserved benefits.
The respondent appealed to the District Court with respect to both these decisions and that appeal was successful. The trial Judge held[11] that the respondent’s employment came to an end by virtue of his incapacity to continue in that employment, that the employment was terminated on 13 July 2008 on account of invalidity, that the respondent “is presently”[12] incapacitated to the extent of 60 per cent or greater and that this incapacity is “likely to be permanent” within the meaning of the Act.
[11] McIntyre v South Australian Superannuation Board t/a Super SA [2014] SADC 63 at [102]-[104].
[12] The date of the District Court judgment is 30 April 2014.
His Honour found that there were cogent reasons[13] to depart from the decision of the appellant with respect to its refusal to pay the basic invalidity insurance benefit and ordered that it be paid. The Judge also allowed the appeal with respect to the refusal to allow early release of the preserved benefits and ordered that the appellant pay to the respondent the balance standing to his superannuation account.
[13] Under s42E(3) of the District Court Act 1991 the approach in the District Court when hearing an appeal in its Administrative and Disciplinary Division is constrained to the extent that it must, “on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons”.

The appellant has appealed against both of the Judge’s determinations. However, during the appeal it conceded that the respondent was entitled to an early release of the preserved benefits, although for reasons different from those relied on by the Judge. As a consequence, it will only be necessary to address the appeal against the Judge’s finding that the requirements of the Act had been met so as to entitle the respondent to payment of the basic invalidity insurance benefit. Nevertheless, it should not be inferred that I necessarily agree with the reasoning in the court below concerning the early release of preserved benefits.
During the hearing of the appeal, the preliminary question of competency was raised. Section 43 of the District Court Act 1991 provides:
43—Right of appeal
(1)A party to an action may, in accordance with the rules of the appellate court, appeal against any judgment given in the action.
(2)The appeal lies—
(a)     in the case of a judgment given by a Master or the Court constituted of a Master—to the Court constituted of a Judge;
(b)     in the case of an interlocutory judgment given by a Judge—to the Supreme Court constituted of a single Judge;
(c)     in any other case—to the Full Court of the Supreme Court.
(3)The appeal lies as of right, or by permission, according to the rules of the appellate court but, in the case of an appeal against a final judgment of the Court in its Administrative and Disciplinary Division, permission is required to appeal on a question of fact.
(4)A right of appeal conferred by this section extends to a legal practitioner, witness or other person against whom an order under section 42 is made.
The parties were invited to provide further (written) submissions concerning whether the appeal was “on a question of fact” requiring permission in accordance with subsection 43(3) and, if so, whether permission should be granted.
The grounds of appeal (concerning the basic invalidity insurance benefit) in the appellant’s notice of appeal are in these terms.
1.The learned Judge erred in law in finding section 34(8) of the Southern State Superannuation Act 1994 applied to the respondent’s circumstances (Reasons at [7]). The learned Judge erred in that he:
1.1    did not make a finding as to who terminated the employment of the respondent; and
1.2    wrongly found that the respondent’s employment terminated on account of invalidity (Reasons at [101-102]).
The learned Judge should have found that:
1.3    the respondent’s employment was terminated by his resignation, not by the employer; or
1.4    in the alternative to paragraph 1.3, the respondent’s employment was not terminated at all but expired through the effluxion of time; and
the respondent was not entitled to insurance benefits under s.34 of the Southern State Superannuation Act 1994.
2.If the respondent’s employment was terminated on account of invalidity and 34(8) applies, the learned Judge erred in law as he misconstrued the term “incapacitated for work” in section 34(8) in the Southern State Superannuation Act 1994. The learned Judge erred in that he:
2.1.   found the respondent had an incapacity but made no finding as to what incapacity the respondent suffered from at the time his employment terminated; and
2.2    made no finding as to the degree of the incapacity suffered by the respondent at the time his employment terminated and its impact on the respondent’s employment; and
2.3    wrongly found that the evidence supported a conclusion that the respondent was incapacitated for work as at the time his employment terminated (Reasons [102]).
The learned Judge should have found that, properly construed, the phrase “incapacitated for work” in section 34(8) of the Southern State Superannuation Act 1994 requires:
2.4    a degree of incapacity which renders a person incapable of continuing in their employment as at the time of termination of employment; and
2.5    the incapacity for which a person ceases work must be more than a temporary incapacity; and
2.6    the incapacity for which a person ceases work must be assessed in medical terms.
Based upon such a construction the learned Judge should have found there was no evidence, and the respondent was not, incapacitated for work for the purposes of entitlement to insurance benefits within the meaning of the Southern State Superannuation Act 1994 at the time his employment terminated.
In my view, but for one further preliminary issue (to be identified shortly), the appellant should succeed on ground 1.1 and on ground 1.3 and/or 1.4. These grounds call for the determination of the proper legal effect of proved facts and raise either a question of law or of mixed fact and law.[14] They do not constitute an appeal on a question of fact within subsection 43(3).
[14] See, eg, Rohrlach v Christianos (1980) 26 SASR 161 at 162-163 (King CJ).
I am satisfied that the Judge erred in finding, on the evidence before him, that the respondent had satisfied all of the necessary requirements under the Act for the payment of the basic invalidity insurance benefit. The Judge failed to determine and the respondent, with whom the onus rests, did not demonstrate one of the essential legislative requirements, namely, that his employment was terminated by the employer.
Ordinarily, this would be a sufficient basis to allow the appeal. However, it would appear that this issue was not raised and argued before the Judge which may explain why his Honour did not advert to it in his reasons. The further preliminary question which arises on this appeal is whether the appellant should be permitted to rely on it now. In my view, the appellant should not be permitted to raise this issue at this late stage. It is for this reason that I would dismiss the appeal. However, before dealing with this further preliminary issue in more detail, I will address the merits of the appeal.
Relevant aspects of the legislation
Set out in Appendix A are some of the legislative provisions of potential relevance to the determination of this appeal. The legislation sets out the preconditions that must be satisfied if an employee, who ceases to be employed as a result of ill health, is to be entitled to recover any invalidity insurance benefit otherwise available.
By subsection 34(1) such an entitlement arises only if the member’s employment “terminates on account of invalidity before the member reaches the age of 65 years”. Further, by subsection 34(2) any invalidity insurance benefit, otherwise available, is not payable unless the “Board”[15] is satisfied that the member’s incapacity for all kinds of work is 60 per cent or more of total incapacity and is likely to be permanent.
[15] “Board” is defined in s3 as meaning the South Australian Superannuation Board, that is, the appellant.
The term “invalidity” is defined under subsection 3(1) to mean “physical or mental incapacity to carry out the duties of employment”. Ordinarily, an entitlement to an invalidity insurance benefit will only arise if a member’s employment is terminated on account of his physical or mental incapacity to carry out the duties of his employment. However, as will be explained below, where a claim is brought in reliance on subsection 34(8) a different test for invalidity is to operate. In addition, the Board also must be satisfied that the member had an incapacity for all kinds of work of 60 per cent or more of total incapacity which is likely to be permanent (the subsection 34(2) incapacity requirement).
To this point, the threshold question, pursuant to subsection 34(1), is whether the respondent’s employment terminated (that is, came to an end) on account of invalidity (as defined). Should that threshold question be answered in favour of the respondent, it would then be necessary to consider whether or not the respondent has also satisfied the subsection 34(2) incapacity requirement.
However, section 34 goes on to restrict the circumstances in which a termination on account of invalidity can be found to have taken place. The opening words of subsection 34(7) are in the following terms (emphasis supplied):
Subject to subsection (8) a member’s employment will be taken to have terminated on account of invalidity if and only if –
(a)...; or
(b)... .
Neither of the requirements in paragraphs (a) or (b) of subsection 34(7) was satisfied in this case.
As far as paragraph (a) is concerned, and even if it could be said that the Department, as employer, terminated the employment of the respondent on the ground of the respondent’s invalidity (which is in issue) it did not do so “acting with the written approval of the Board” (that is, the appellant). It has not been contended, on behalf of the respondent, that paragraph (a) of subsection 34(7) can apply.
As far as paragraph (b) is concerned, even if the Department, as employer, terminated the employment of the respondent or the respondent resigned from his employment, as contemplated by subparagraph (b)(ii), the requisite notice was not given to the Board as required by the regulations prior to any such termination or resignation. Further, at no time can it be said that either the Department, as employer, or the respondent satisfied the Board of the matters required by subparagraph (b)(i) before any such termination or resignation. Again, it has not been contended, on behalf of the respondent, that paragraph (b) of subsection 34(7) can apply.
The respondent’s claim that his employment was terminated on account of invalidity will only succeed if the respondent can bring himself within the alternative route provided for by subsection 34(8). That subsection provides as follows:
(8)A member's employment will be taken to have terminated on account of invalidity if—
(a) at a time when the member is totally or partially incapacitated for work in the member's present position the member's employment is terminated by the employer—
(i)in circumstances that would, but for this subsection, constitute retrenchment of the member; or
(ii)on account of the unsatisfactory performance by the member of his or her duties (including the member's failure to meet performance standards) caused by the member's incapacity; or
(iii)for any other reason that is caused by or is the direct result of the member's incapacity; and
(b) the Board is satisfied that the member has been totally or partially incapacitated for work in the member's former position since the termination of his or her employment (being a period of at least six months) and that the incapacity is likely to be permanent.
The respondent’s employment will be taken to have terminated on account of invalidity, if and only if paragraphs (a) and (b) are satisfied, that is:
(1)the respondent’s employment was terminated by the employer in particular circumstances;[16]
(2)any such termination by the employer occurred at a time when the respondent was totally or partially incapacitated for work in his position as a groundskeeper; and
(3)the Board, being the appellant, is satisfied of the matter in paragraph (b).
[16] Any such termination has to be in circumstances that satisfy one or more of subparagraphs (i), (ii) or (iii) of paragraph (a). Those subparagraphs are considered later in these reasons.
Was the respondent’s employment terminated by the employer?
Sometimes a distinction is drawn between a contract of employment and the employment relationship itself. The latter is a matter of status; the former is a mechanism for regulating the status relationship between an employer and an employee. It is possible for particular contractual rights and obligations to subsist between the parties to a contract of employment both before the employment relationship commences and after it ceases. The Act does not expressly refer to termination of the employment relationship or termination of the employment contract, only to the member’s “employment” being terminated by the employer.
The distinction is of no consequence in the present case. The respondent’s employment was regulated by a fixed term contract of employment. On the available evidence (discussed below) there is no basis to find that the employment contract and the employment relationship were other than co-incident. Only whilst the contract subsisted did the employment relationship subsist. The respondent must demonstrate that his employment contract was terminated by the employer.
The facts, as disclosed by the evidence and bearing on this issue, are not in contest.[17] What is in contest is the proper inference, as a mixed question of fact and law, to be drawn from the facts. The word “terminate” or its derivatives is not defined in the Act. However, it is used consistently throughout the Act in the context of termination of employment and, as far as paragraph (a) of subsection 34(8) is concerned, the termination in question is to be “by the employer”.
[17] The appeal to the Judge was determined on the basis of the following evidence: affidavit of the appellant sworn 14 January 2014 together with three exhibits, affidavit of David Cowell a long standing friend of the appellant, sworn 15 January 2014, affidavit of the respondent’s solicitor Peter Milte sworn 21 May 2013 together with 15 exhibits all of which affidavits were read in the respondent’s case, affidavit of Andrew Graham Iles, the appellant’s Manager of Claims Management, affirmed 21 August 2013 together with 28 exhibits, read in the appellant’s case and a bundle of medical reports (exhibit A5) tendered in the respondent’s case.
I see no reason not to adopt the ordinary meaning of termination as used in the context of employment law. In general terms, termination of employment by an employer refers to conduct by an employer, purportedly open to the employer pursuant to either contract, statute or industrial instrument, which serves to bring to an end its employment relationship with an employee. Ordinarily, and on whatever basis or for whatever reason a contract of employment has come to an end, if there has been a termination by the employer it will be because the employer has engaged in some act to bring the contract of employment to an end. Such an act may be as simple as acquiescence in the event that, for example, an employee simply walks off the job or, perhaps, acquiescence coupled with the employment of another person to do the job.
To describe the example just given in conventional contract terms, an employee, by walking off the job, may be seen to repudiate the contract of employment. Such a repudiation must, by either words or conduct (including a material omission) of the employer, be accepted if it is to effect a termination of the contract of employment by the employer.[18] However, that is not what happened here. Even if there had been a refusal by the respondent to perform, there was nothing, by way of words or conduct by the employer, properly to be characterised as an act of acceptance of any repudiation and effecting a termination.
[18] Termination by a party in this sense is to be distinguished from termination by agreement or mutual abandonment.
The following findings of fact find support in the evidence, are consistent with the Judge’s findings and do not appear to be in contest. They summarise the explanatory background to and the circumstances in which the respondent ceased working for the Department on 13 July 2008.
(i)The respondent commenced employment with the Department on a part-time basis, and pursuant to short term contracts, as a groundskeeper for the Port Vincent Primary School in May 2005.
(ii)On or about 30 January 2008, he entered into a further contract of part-time employment for a fixed term period comprising 30 January 2008 to 21 January 2009.
(iii)The respondent underwent orthopaedic surgery on a finger in June 2006 at which time his anaesthetist identified a heart murmur. This was further investigated but no surgical or other intervention was then undertaken.
(iv)During 2007, the respondent’s marriage broke down leading to a very stressful divorce. After the marriage breakdown in 2007, the respondent began to feel extremely stressed and fatigued and began to have difficulty performing his work as a self-employed landscaper and his work as part-time groundskeeper for the Department.
(v) In January 2008, the respondent consulted his cardiologist, Dr Mahar, for a review with respect to the heart murmur. Dr Mahar identified that the condition had deteriorated more quickly than Dr Mahar had expected and he recommended aortic valve replacement surgery “sooner rather than later”. No surgery was arranged at that time and, in fact, such surgery did not take place until March 2009. Meanwhile, the respondent commenced, on or about 30 January 2008, to work pursuant to the contract of employment with the Department referred to above.
(vi)At the time the respondent commenced working under this contract he was still undergoing stress as a result of the divorce but was continuing to work despite feeling fatigued and extremely run down.
(vii)In early July 2008, the respondent spoke to the principal of the Port Vincent Primary School, a Ms Michelle Hawthorn. He advised her that he was not coping with his work and that the stress of trying to continue to work as well as going through a very stressful divorce was having an adverse impact on his heart condition. He explained that he was unable to keep working. According to the respondent, Ms Hawthorn “was very understanding and was reluctant to terminate [the] contract”. She advised him that “[he] would be able to stop working without actually terminating [his] employment and that [he] could then come back to work once [he] had recovered sufficiently”.
(viii)The respondent ceased working at the school on 13 July 2008 and has not been able to return to work since then.
(viv)The respondent understood from his conversation with the principal that “my contract was being stopped but that I would be able to renew it once my health improved”.
The only other evidence identified by the respondent as bearing on the question of the status of the employment contract is a document and some email correspondence exhibited to the affidavit of Andrew Isles, the appellant’s Manager of its Claims Management. The document is headed “termination certificate”. It was obtained by the appellant from the Department. The certificate was requested sometime after 12 August 2010 which was the date the appellant was first advised that the respondent’s employment with the Department had ceased. The termination certificate provided by the Department is dated 27 August 2010. The date 13 July 2008 is recorded next to the proposition “date of termination of employment or if casual date last worked”. Next to the proposition “reason for termination”, the words “end of contract” are recorded.
Mr Iles sent an email, dated 24 February 2011, to a Choe Tien (DTF) whom Mr Iles described as being from some entity or department known as “Shared Services”. Mr Iles attached to that email a copy of the termination certificate and asked for confirmation of the exact reason why the respondent’s employment ceased on 13 July 2008. Choe Tien replied by email on 2 March 2011 that payroll were not told the reasons but received advice from “Site HR” to “early end date his contract on 13/07/08”.
It is not apparent on the face of the termination certificate why the Department records recorded the contract as having been “early end dated” and the author of the termination certificate did not give evidence. The only inference I am prepared to draw is that, for some undisclosed administrative purpose, the Department wished to record that the contract came to an end on the respondent’s last day of work, 13 July 2008. In any event, the termination certificate was not created until almost a year after the respondent ceased working. The question of whether and, if so, in what circumstances, the contract was terminated prior to 21 January 2009 will turn on the parties’ conduct at or about that time.

Early termination of a contract can only occur while it subsists, that is, before it otherwise has come to an end by effluxion of time in accordance with its terms. Once 21 January 2009 came about, it was too late for either party to terminate the contract. As such, the termination certificate can be of no assistance in ascertaining whether the respondent’s employment was terminated (and, if so, how) at sometime between July 2008 and 21 January 2009.
The respondent submits that a strict application of the law of termination of contracts of employment is not called for in the circumstances of this case and that the Court should be satisfied that the contract was brought to an end by the employer at some, unascertainable, time prior to 21 January 2009 by some, unascertainable, mechanism and on the basis that the employer was satisfied that the respondent, because of ill health, was unable to undertake the required duties. In this sense, the employment was brought to an end, that is, was terminated by the employer. I reject that submission.
The onus rests with the respondent to bring himself within the requirements of the Act so as to demonstrate an entitlement to claim the basic invalidity insurance benefit. The evidence relied upon is scant. Unfortunately, there is no evidence from the other party to the central conversation relied upon by the respondent, that is, the school principal, Ms Hawthorn. However, the terms of the conversation, as deposed to by the respondent, are tolerably clear to the effect that Ms Hawthorn was not seeking to have the contract come to an end.[19] Rather, she suggested a “wait and see” type of arrangement. Permission was given to the respondent to stop working on the basis that he could come back once he had recovered sufficiently.
[19] Had Ms Hawthorn purported to terminate the contract on behalf of the Department, the question of her authority to do so or, in lieu thereof, issues of estoppel might have arisen. The letter sent to the respondent which outlined his approved employment arrangements was signed by the Superintendent Site Human Resources for the Department. Neither party challenged, in the court below or at the appeal, Ms Hawthorn’s authority to effect whatever it was she effected in her conversation with the respondent.
It is unlikely that Ms Hawthorn, as principal of her school, would have had the authority to permit the respondent to come back and work for the Department at other schools or to extend the respondent’s contract. Her suggestion is to be understood in the sense that the respondent could, if well enough, come back and resume his then contractual obligations to work at her school. In other words, Ms Hawthorn was proposing that the respondent, in effect, take leave without pay but that his contract of employment would remain in place for the present. There the trail goes cold. There is no evidence as to what steps, if any, were taken to replace the respondent as part-time groundskeeper thereafter.
There is the uncontested evidence of the respondent as to his understanding “that my contract was being stopped but that I would be able to renew it once my health improved”. There may be an element of reconstruction here; a later attempt by the respondent to express his thinking, at the time of the events, in quasi legal terms (the contract was being stopped) arguably consistent with the requirement under the Act that the employer must terminate the employment. However, the respondent was not cross-examined on his affidavit and was not given an opportunity to respond to any such potential criticism. More importantly, and in any event, any such “understanding” is inconsistent with the objective meaning of the terms of the conversation deposed to by the respondent. On the available evidence, there was no question of the contract being stopped. Indeed to the contrary, the principal advised that the respondent would be permitted to stop working without actually having his employment terminated.
I am not satisfied that the respondent’s employment contract, and thus his employment, “was terminated on 13 July 2008”, as the Judge found.[20] But in any event, I am not satisfied that the respondent’s employment was terminated “by the employer” as at that date. I note, in this respect, that the Judge did not make a finding that the employment was terminated by the employer only that it was terminated.
[20] McIntyre v South Australian Superannuation Board T/A Super SA [2014] SADC 63 at [3] and [6].
For this reason, the respondent has not satisfied the requirement under subsection 34(8). Subject to the question of whether the appellant should now be permitted to rely on the appeal grounds raising this issue, I would allow the appeal on this basis alone.
If I am wrong in this respect and if the respondent’s employment was terminated in some way by or on behalf of the Department, as employer, it can only have been so terminated on 13 July 2008 (the last day the respondent worked) or on some date thereafter but before 21 January 2009 being the date when the contract was to expire by effluxion of time in any event.
In this latter case, subsection 3(4a) would apply. That provision provides as follows:
(4a)   Where a member is employed—
(a)     pursuant to a contract for a fixed term; or
(b)     pursuant to an arrangement of the kind referred to in subsection (6); or
(c)     on a temporary basis for a particular period or until the occurrence of a particular event,
and the employment is not renewed at the end of the term or period, the member's employment will be taken to have been terminated by retirement or resignation (depending on the member's age).
The respondent was employed pursuant to a contract for a fixed term. Furthermore, his employment was not renewed at the end of the term (21 January 2009). As such, his employment, if still in place as at 21 January 2009, will be taken to have been terminated by resignation.[21] If the contract of employment did come to an end by effluxion of time it was not a case, by statutory definition, of termination by the employer. It follows, that if I am wrong with respect to my earlier conclusion and if, in truth, the employment had been terminated by the Department, any such termination would have occurred prior to the contract’s expiry on 21 January 2009.
Did any (putative) termination by the employer occur at a time when the respondent was totally or partially incapacitated for work as groundskeeper?
[21] The alternative of retirement cannot apply because the respondent was not of an age to satisfy the requirement for retirement under the Act.
If I am wrong in my earlier conclusion and the respondent’s employment was terminated by the Department, as employer, at some time prior to 21 January 2009, the respondent still was obliged to demonstrate that he was and remains totally or partially incapacitated for work as a groundskeeper in accordance with the requirements of subsection 34(8).
This requires the respondent to establish the following three further matters:
(1)that the respondent, at the time of the (putative) termination by the Department, was “totally or partially incapacitated for work in [his position as groundskeeper]”;
(2)that the employment was terminated –
(i)     in circumstances that would, but for [subsection 34(8)] constitute retrenchment of the respondent; or
(ii)    on account of the unsatisfactory performance by the respondent of his or her duties (including any failure to meet performance standards) caused by the respondent’s incapacity; or
(iii)   for any other reason caused by or the direct result of the respondent’s incapacity; and
(3)satisfaction by the Board (presumably at the time of making its decision) that the respondent had been totally or partially incapacitated for work as a groundskeeper for at least six months since the termination of the employment and that the incapacity is likely to be permanent.
The effect of subsection 34(8) appears to be that if 1, 2 and 3, above (that is, the requirements paragraphs (a) and (b) of subsection 34(8)) are made out, there will be a deemed termination “on account of invalidity” by the employer. In other words, the fundamental requirement for recovery of the basic invalidity insurance benefit, as provided for by subsection 34(1), will have been satisfied. This is somewhat curious because in such circumstances, the statutory definition of invalidity in subsection 3(1) – physical or mental incapacity to carry out the duties of employment – is, in effect, to be ignored. It is to be replaced with the above requirements provided for by paragraphs (a) and (b) of subsection 34(8).
Was the respondent at the time of the (putative) termination totally or partially incapacitated for work as a groundskeeper – issue 1 above
The respondent at this stage of the enquiry need only establish that, at the time of the (putative) termination, he was partially incapacitated for work as a groundskeeper. There is no definition of partial incapacity in the Act and no authority dealing with this phrase under the Act has come to my attention. The phrase should be given its ordinary English meaning. Nevertheless, the definition of “invalidity”, it being a core concept under the Act, remains a relevant consideration in this respect, notwithstanding that the effect of subsection 34(8) is to bypass the direct application of that term. The definition of invalidity in subsection 3(1) expressly identifies, as relevant, the physical or mental capacity of a member to carry out the duties of his or her employment.
For present purposes, I adopt the following as a working definition of the phrase “partially incapacitated” in the context of the respondent’s employment as a groundskeeper. The respondent is to be seen as partially incapacitated for work as a part-time groundskeeper at the Port Vincent Primary School if, for mental or physical reasons, he is only capable of performing some but not all of the usual tasks involved or only capable of performing any of the usual tasks involved at a level or to an extent below that ordinarily and reasonably to be expected of a person undertaking that employment.
The evidence concerning the respondent’s capacity to work as a part-time groundskeeper at the Port Vincent Primary School during the period 13 July 2008 to 21 January 2009, again, was extremely scant. There is the respondent’s own evidence as deposed to in his affidavit, the evidence of his long standing friend, Mr David Cowell as deposed to in his affidavit and the respondent’s evidence concerning the apparent acceptance by the principal, Ms Hawthorn, that the respondent was unable to continue. There is also some limited medical evidence bearing on the issue. I will deal with each of these in turn.
The orthopaedic surgery performed in June of 2006 was ultimately of no concern. The issues of concern and bearing on the respondent’s capacity to work as a groundskeeper at the school, according to the respondent’s evidence, were the ongoing stress and fatigue being suffered as a consequence of a difficult marriage breakdown and divorce and the deterioration in the respondent’s heart condition as noted by his cardiologist, Dr Mahar, in January 2008. It was at that time that Dr Mahar recommended aortic valve replacement surgery “sooner rather than later”.
Notwithstanding Dr Mahar’s recommendation, the cardiac surgery was not undertaken until March of 2009. As such, as at the time that the respondent ceased to work as a groundskeeper (July 2008) it can be inferred that he was suffering from a deteriorating cardiac condition that more likely than not had an effect on his energy and stress levels and, as such, on his capacity to perform the physical tasks of being a groundskeeper. There is no evidence as to the nature of the tasks specifically undertaken by the respondent in his job as a groundskeeper nor as to the physical demands those tasks imposed on the respondent nor as to the number of consecutive hours the respondent was required to work from time to time (but recognising that he was contracted to work four hours a week). During argument counsel for the appellant conceded that the respondent’s work would have involved rubbish clean up and removal, gardening and general garden maintenance. In addition to his work as groundskeeper, the respondent was also endeavouring to maintain and conduct his own landscaping business.
It was the respondent’s unchallenged evidence that he was not coping with his work at the school and that the stress of trying to continue to work there as well as going through a stressful divorce was having an adverse impact on his heart condition. He felt unable to keep working. The principal, Ms Hawthorn, after having these matters explained to her, again according to the respondent’s unchallenged evidence, was understanding and accepting of the fact that the respondent was unable, at that time, to continue working as groundskeeper. Furthermore, the respondent did not thereafter ever resume physical remunerated work.
The evidence of Mr David Cowell is not particularly helpful on this issue. His evidence essentially speaks to the condition of his friend, the respondent, as at the time of swearing his affidavit, 15 January 2014. However, Mr Cowell does describe the respondent as having operated a successful landscaping business prior to 2009, as having played football for the local team and as having assisted in the reconstruction of the local tennis club courts. Mr Cowell deposes to the fact that this type of physical activity by the respondent stopped when the respondent had his “health and heart complications”. In my view, the focus of Mr Cowell’s affidavit is essentially on the respondent’s reduced capacities following the heart operation in March 2009 and its ensuing complications.
Most of the medical evidence focuses on the respondent’s health and capacities following, and as a consequence of, the aortic valve replacement surgery in March 2009 and is not particularly helpful to the present enquiry. However, the letter of report, dated 8 January 2008, by the respondent’s cardiologist, Dr Mahar, does lend support to the account given by the respondent. In 2006 he diagnosed the respondent as suffering from aortic stenosis and regurgitation. I interpolate here that aortic stenosis is the abnormal narrowing of the aortic valve which serves to restrict the flow of blood from the ventricle to the aorta; symptoms include breathlessness, fainting, coughing at night and pains in the chest. Dr Mahar, in his letter of 8 January 2008 (some six months before the respondent ceased working) indicated that the disease had progressed more quickly than he had hoped and the respondent was scheduled to have an aortic valve replacement “shortly”. However, as I have said, that operation did not take place until more than 12 months later.
The evidence bearing on the respondent’s physical and mental capacity to carry out his duties as groundskeeper is limited. Nevertheless, I am quite satisfied that the respondent was, at least, partially incapacitated for his work as a groundskeeper as at 13 July 2008 and that he remained so thereafter.
As it happened, whilst the cardiac problem was largely resolved following the operation in March 2009, the complications that ensued rendered the respondent, after 3 March 2009, very substantially, if not totally, incapacitated. This level of incapacity has persisted and is likely to be permanent. There is ample support for this in the respondent’s evidence and in the medical evidence and I do not understand this conclusion to be contested by the appellant.
Was the employment terminated by the employer in circumstances that would satisfy either (i) or (ii) or (iii) of paragraph (a) of subsection 34(8) – issue 2 above
There is significant artificiality about any attempt to address this issue. I have already found that I am not satisfied that the respondent’s employment was terminated by the employer during the period 13 July 2008 to 21 January 2009 but that the contract expired by effluxion of time. Now, I must not only assume the incorrectness of that finding but also hypothesise as to the circumstances in which such a (putative) termination took place and the reasons for it.
In attempting to address this issue, I will ignore the possibility provided for by subparagraph (i). The unravelling of the interrelationship of that provision (the meaning and application of which turns on the notion of “retrenchment”) with the definition of the term “retrenchment” in section 3, particularly when regard is had to paragraph (a) of the definition of retrenchment, is not an easy task. I do not need to undertake that exercise because, in the event the employment was terminated by the employer, it most likely would have been on the basis of either (ii) or (iii) or both. At the very least, any (putative) termination necessarily would have been on account of the respondent’s unsatisfactory performance by simply not turning up for work which was caused by his (partial) incapacity.
It follows that I am satisfied that, had the respondent’s employment been terminated by the employer, the requirements of paragraph (a) of subsection 34(8) would have been satisfied. That brings me to the third issue referred to above.
The Board must be satisfied that the respondent has been totally or partially incapacitated for work as a groundskeeper for a period of at least six months since the (putative) termination of the employment and that the incapacity is likely to be permanent – issue 3 above
Paragraph (b) of subsection 34(8) looks to the incapacity identified for the purpose of paragraph (a), in this case, the respondent’s partial incapacity. I have already found that the respondent was partially incapacitated as at 13 July 2008. The respondent’s evidence and the medical evidence strongly supports a finding that this incapacity did not thereafter improve but, in fact, deteriorated significantly following the operation on 3 March 2009 and that the respondent’s ongoing incapacity is likely to be permanent. In the event that paragraph (a) of subsection 34(8) is found to have been satisfied, the appellant does not dispute that paragraph (b) will also be satisfied.
The requirement under subsection 34(9) to give notice of a claim pursuant to subsection 34(8)
Subsection 34(9) imposes an obligation on a member referred to in subsection 34(8) and who claims to be entitled to benefits under section 34 (or a person acting on his or her behalf) to give written notice to the appellant of the claim within six months after the termination of the employment. The respondent did not do this. The appellant was first notified (by the respondent’s solicitor) of his intention to make a claim on 12 August 2010, more than 18 months after the date of expiration as recorded on the contract.[22]
[22] Exhibit AGI-1 to the affidavit of Andrew Graham Iles.
The Judge resolved this issue[23] in favour of the respondent. His Honour found that the appellant, when proceeding to decide the claim on its merits either expressly or impliedly granted an extension of time and thereby waived the requirement to give notice within six months. There has been no appeal from this aspect of his Honour’s judgment and the point was not agitated on the appeal.
The overarching requirement provided for by subsection 34(2) – incapacity for all kinds of work of 60 per cent or more
[23] McIntyre v South Australian Superannuation Board T/A Super SA [2014] SADC 63 at [35]-[38].
Once subsection 34(8) is satisfied, even if only on a partial incapacity basis, a member still must also satisfy the requirement in subsection 34(2). That subsection provides:
(2)The basic and voluntary invalidity insurance benefits are not payable unless the Board is satisfied that the member's incapacity for all kinds of work is 60 per cent or more of total incapacity and is likely to be permanent.

The reference to the Board being satisfied is expressed in the present tense. Any state of satisfaction or non-satisfaction is to exist as at the time the Board considers the question and forms its view. However, there is also the question of the time at which the member’s incapacity is to be addressed. Is it to be tested and assessed as at the time the Board forms its view or as at some earlier time and, if so, what time? In my view, it is the former. Again, the present tense is employed. The benefit will only be payable if “the Board is satisfied that the member’s incapacity ... is 60 per cent... and is likely to be permanent.”
The appellant Board refused the respondent’s claim not on the basis that there had been no termination by the employer but rather on the basis that his fixed term contract had come to an end well before the respondent’s disability emerged in March 2009. However, it is common ground that, as at March 2009 and thereafter, the respondent had an incapacity for all kinds of work that was 60 per cent or more of total incapacity which was likely to be permanent. The medical evidence summarised by the Judge[24] is sufficient to justify such a finding.
[24] [2014] SADC 63 at [78]-[96].
Ordinarily, the Board will come to consider this question of incapacity and its likely permanence at a time no less than six months after a claiming member’s employment has been terminated.[25] It would seem that the basic structure of the process envisaged by subsection 34(8) is that employment must first be terminated by the employer in accordance with the requirements of paragraph (a). At this stage, the level of incapacity that might trigger such a termination is at large. However, the requirements of paragraph (b) of subsection 34(8) and subsection 34(2) must also be satisfied but at a later time, being at least six months after the termination. In the present case, had there been a termination of employment by the employer, in accordance with paragraph (a) of subsection 34(8), and given the appellant’s waiver of the six months notice requirement in subsection 34(9), the requirements of paragraph (b) of subsection 34(8) and subsection 34(2) would have been satisfied had the appellant addressed them sometime after 3 March 2009.
[25] See paragraph (b) of ss34(8) and ss34(9).
Preliminary conclusion
To this point I have found that the requirement for the employment to have been terminated by the employer has not been made out on the evidence available to the Judge. However, the respondent has satisfied all other requirements under the Act to otherwise entitle him to receive the basic invalidity insurance benefit. Nevertheless, as a result of the former finding, the appeal should, ordinarily, be allowed unless the appellant should not now be permitted to raise for the first time the question of whether the employment was terminated by the employer.
Should the appellant be allowed to rely on a finding that the employment was not terminated by the employer?
The law concerning the circumstances in which a party will be entitled to raise on appeal a ground or argument not pursued at trial was summarised by this Court in Lucke v Cleary & Ors.[26]
[26] [2011] SASCFC 118 at [43]-[50], Stanley J with whose reasons Gray and David JJ agreed.
In The University of Wollongong v Metwally (No 2),[27] the High Court enunciated the principle relevant to the determination of an application to raise on appeal an argument not put at trial. The Court said:[28]
[27] (1985) 59 ALJR 481.
[28] (1985) 59 ALJR 481 at 483.
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.
In Coulton v Holcombe,[29] the High Court explained the underlying principles justifying this approach:[30]
[29] (1986) 162 CLR 1.
[30] (1986) 162 CLR 1 at 7-8.
It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards.
The High Court reaffirmed the position in Water Board v Moustakas:[31]
[31] (1988) 180 CLR 491 at 497.
More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied.
(Footnote omitted)
Examples of the High Court allowing a new point to be raised for the first time on appeal can be found in Coulton v Holcombe,[32] National Australia Bank Ltd v KDS Construction Services Pty Ltd (In Liq),[33] and Fingleton v The Queen.[34]
The threshold test to be met by a party which seeks to raise an argument for the first time on appeal is high. An appeal court will only permit a party to do so in the most exceptional circumstances. Where all the facts have been established beyond controversy or where the point is one of construction or of law, the appeal court may, in the exercise of its discretion, entertain the point where it is expedient in the interests of justice to do so but, even in those circumstances, the exercise of the court’s discretion is informed by the proposition that a party will only be permitted to do so in the most exceptional circumstances.
By way of illustration, in Coulton v Holcombe[35] the High Court permitted the appellants to raise a point for the first time on appeal as the point touched upon issues of public law which affected the wider community including executive government and the Parliament, all of whom had an interest in the clarification of statutory duties and the observance of law by statutory office holders. The Court distinguished the case from one of private litigation inter partes. In Fingleton v The Queen,[36] Kirby J noted that in criminal appeals the rule is tempered by the focus of the relevant statute upon issues of miscarriage of justice and by the heightened concern of the law with questions of the liberty of the individual, status and reputation.[37] These authorities emphasise the exceptional nature of the case.
On the other hand, in National Australia Bank Ltd v KDS Construction Services Pty Ltd (In Liq),[38] the Court upheld an argument that the appellant was entitled to relief based on the existence of a lien notwithstanding that point had not been raised in the courts below. It did so on the basis there was nothing in the evidence or in the relationship of the parties that pointed to the possible existence of an agreement or of circumstances which would have negated the existence of the lien. Accordingly, the Court gave effect to the appellant’s submission that it had a lien and allowed the appeal on that basis.
Plainly, this involved the exercise of a discretionary judgment.
In Skorpos & Anor v United Petroleum Pty Ltd[39] Kourakis CJ (with whose reasons David and Peek JJ agreed), after quoting part of the above passage from Lucke, continued:
In a common law adversarial trial the Court determines the issues submitted to it by the parties for resolution. Moreover, the judicial determination of an action at trial is a final, not preliminary, resolution of the legal controversy. Appeal proceedings are not a continuation or extension of the trial. The issue on appeal is whether the judgment given at trial is vitiated by error.[40]
Plainly enough there are both semantic and substantive difficulties in the proposition that a judgment is attended by error if the issue which it is contended was wrongly adjudicated was never submitted to the court. Nonetheless, the interests of justice may on occasion demand a reversal of the decision. It is not possible to be prescriptive about the conditions and considerations which will bring about that result. In ascertaining where the interests of justice lie it should be recognised that there are competing considerations. On the one hand it is in the interests of justice that the orders of courts reflect the correct application of the law to the facts as found. On the other hand, the public interest in the finality of litigation demands that parties be bound by the conduct of their case at trial. To say that a judgment will be set aside on a point not taken at trial only in exceptional circumstances should be understood as an observation about what will commonly be the result of the evaluation of those competing principles and not as a presumptive rule.
[32] (1986) 162 CLR 1.
[33] (1987) 163 CLR 668.
[34] (2005) 227 CLR 166 at 218-219.
[35] (1986) 162 CLR 1.
[36] (2005) 227 CLR 166.
[37] (2005) 227 CLR 166 at 218.
[38] (1987) 163 CLR 668.
[39] [2013] SASCFC 117 at [33]-[34].
[40] Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192, 208-209 (Windeyer J).
The present case concerns an appeal not from a trial but from an appeal to the District Court in its Administrative and Disciplinary Division. Nevertheless, the appeal to the District Court was based on the affidavit and other evidence presented by the parties according to the issues in dispute as perceived by the parties. The principles as summarised above continue to apply.
The application in the District Court was brought by the respondent. It focussed on the Board’s failure to find that the respondent’s employment had been terminated on grounds of invalidity, namely, as a result of the heart condition which is said to underlie the respondent’s total and permanent disability.[41] The appellant contested the review on this basis and did not raise the issue that the employment had not been terminated by the employer. In its written submissions before the Judge the appellant asserted these propositions.[42]
[41] “Appellant’s (being the respondent on this appeal) Submissions” before the Judge filed 16 January 2014 at [6.1], [15].
[42] “Respondent’s (being the appellant on this appeal) Outline of Submissions” before the Judge filed 16 January 2014, at [2], [6]-[8].
2.The appellant’s employment was terminated on 13 July 2008... and as such his right to an insurance benefit accrued as at that date.
.. . .
6.The appellant was employed pursuant to a fixed term contract which began on 30 January 2008 and ceased on 13 July 2008. His employment was terminated due to the end of the fixed term contract... .
7.It appears the contract was “early end dated” but the reasons for this were not ascertained by the respondent and are not relevant... .
8.For the appellant to be entitled to total and permanent disablement insurance he needed to have ceased employment on account of invalidity... .
During the hearing before the Judge the issue of whether or not the employment was terminated by the employer was not raised. The hearing proceeded on the common understanding that the employment had come to an end on 13 July 2008;[43] the contest was over whether or not the respondent could establish invalidity at an appropriate time.
[43] See, for example, transcript in the District Court at T19, 21, 22, 26, 37, 39 and 63-65.
As discussed earlier in these reasons, the question of whether or not the employment was terminated by the employer has been rendered difficult and problematic as a result of the paucity of evidence relevant to this issue. It cannot be assumed that had this issue been squarely raised before the Judge, either or both parties would not have been able to ascertain and adduce further evidence bearing on the question.
It is true that the respondent carried the ultimate onus to prove his claim. However, where the Board did not rely on this issue in its original decision nor before the Judge on review, the respondent could be forgiven for thinking that it was not in contest.
In my view, this is a situation where, had the point been taken before the Judge, it is likely that further evidence could have been obtained and adduced which may have prevented the point now relied on by the appellant from succeeding. This is not a case where it would be in the interests of justice for this Court to entertain the point and the rule identified and discussed in Lucke and Skorpos should be strictly applied. In the circumstances of this case, where only a relatively small sum is involved and the claim, otherwise, has merit on the facts, it would not be in the public interest to do otherwise.
Conclusion
I would dismiss the appeal.
Appendix A
Section 3 – Interpretation – subsections (4a) and (4b)
(4a)Where a member is employed—
(a)pursuant to a contract for a fixed term; or
(b)pursuant to an arrangement of the kind referred to in subsection (6); or
(c)on a temporary basis for a particular period or until the occurrence of a particular event,
and the employment is not renewed at the end of the term or period, the member's employment will be taken to have been terminated by retirement or resignation (depending on the member's age).
(4b)Despite subsection (4a), if—
(a)a member is employed pursuant to a contract for a fixed term; and
(b)the member is, within the period of 3 months after the end of the term of the contract, employed under a new contract for a fixed term in the same or similar employment,
then—
(c)the member will, for the purposes of Division 2 of Part 3, be taken to have remained in the relevant employment; and
(d)if the member was making contributions under section 25 immediately before the end of the period of the first contract, the member will, for the purposes of section 33A, be taken to have made contributions from his or her salary under section 25 during the period between the 2 contracts.
Section 34 – Termination of employment on invalidity – subsections (1), (2), (7), (8) and (9)
(1)If a member's employment terminates on account of invalidity before the member reaches the age of 65 years the member is entitled to benefits made up of the following components:
(a)the employee component; and
(b)the employer component; and
(c)the rollover component (if any); and
(ca)the co-contribution component (if any); and
(d)subject to this section, the basic invalidity insurance benefit and the voluntary invalidity insurance benefit (if any).
(2)The basic and voluntary invalidity insurance benefits are not payable unless the Board is satisfied that the member's incapacity for all kinds of work is 60 per cent or more of total incapacity and is likely to be permanent.
(7)Subject to subsection (8) a member's employment will be taken to have terminated on account of invalidity if and only if—
(a)the employer (acting with the written approval of the Board) terminates the employment on the ground of the member's invalidity; or
(b)—
(i)    the employer or the member satisfies the Board (before termination of employment) that the member is incapacitated for work in the member's present position and that there is no other position, carrying a salary of at least 80 per cent of the salary applicable to the member's present position, which the member could reasonably be expected to take, available to the member; and
(ii)     after notice has been given to the Board as required by the regulations, the employer terminates the employment or the member resigns from employment.
(8)A member's employment will be taken to have terminated on account of invalidity if—
(a)at a time when the member is totally or partially incapacitated for work in the member's present position the member's employment is terminated by the employer—
(i)    in circumstances that would, but for this subsection, constitute retrenchment of the member; or
(ii)     on account of the unsatisfactory performance by the member of his or her duties (including the member's failure to meet performance standards) caused by the member's incapacity; or
(iii)    for any other reason that is caused by or is the direct result of the member's incapacity; and
(b)the Board is satisfied that the member has been totally or partially incapacitated for work in the member's former position since the termination of his or her employment (being a period of at least six months) and that the incapacity is likely to be permanent.
(9)A member referred to in subsection (8) who claims to be entitled to benefits under this section, or a person acting on his or her behalf, must within six months after the termination of the member's employment, give written notice to the Board claiming that the member is entitled to benefits under this section.