State Super SAS Trustee Corporation Ltd v Perrin - [2016] NSWCA 232

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: State Super SAS Trustee Corporation Ltd v Perrin [2016] NSWCA 232
Hearing dates: 2 August 2016
Decision date: 01 September 2016
Before: Basten JA at [1];
Gleeson JA at [32];
Sackville AJA at [81]
Decision:
(1)   Extend the time for filing of the notice of appeal to 7 March 2016.

(2)   Appeal allowed.

(3)   Set aside the determination and orders made by Neilson DCJ on 2 November 2015 and in place thereof:

(a)   Dismiss the appeal to the District Court;

(b)   Make no order as to costs of the proceedings in the District Court.

(4)   Respondent to pay the appellant’s costs of the appeal in this Court.
(5) Respondent to have a certificate under the Suitors’ Fund Act 1951 (NSW).
Catchwords:
APPEAL – appeal from District Court’s residual jurisdiction – whether error in point of law – District Court Act 1973, s 142N – proceedings under Police Regulation (Superannuation) Act 1906, s 21 seeking to set aside decision of STC

WORKERS' COMPENSATION – entitlement to compensation - grant of gratuity under s 12D(1) – whether surgical treatment of neck reasonably necessary under Workers Compensation Act 1987, s 60 – whether primary judge found that as a result of certified “hurt on duty” injury proposed surgery reasonably necessary
SUPERANNUATION –former police officer – grant of gratuity sought for surgical treatment –decision by STC that proposed surgery not reasonably necessary – finding by primary judge that other causes of officer’s neck pain be excluded before proposed surgery reasonably necessary – whether exercise of incidental power under Superannuation Administration Act 1996, s 57
Legislation Cited: District Court Act 1973 (NSW) s 142G, 142N
Police Regulation (Superannuation) Act 1906 (NSW) s 1, 3, 9A, 10, 10(1A), 10B, 12D, 21
Superannuation Administration Act 1996 (NSW) s 57
Trustee Act 1925 (NSW) s 57
Uniform Civil Procedure Rules 2005 (NSW) r 42.1, 51.9
Workers Compensation Act 1987 (NSW) s 4, 59, 60, 61 and 62
Cases Cited: Bartolo v Western Sydney Area Health Service (1987) 14 NSWCCR 223
Commissioner of Police v Kennedy [2007] NSWCA 328
Perrin v SAS Trustee Corporation (No 2) [2015] NSWDC 345
Perrin v SAS Trustee Corporation [2014] NSWDC 203
Perrin v SAS Trustee Corporation [2013] NSWDC 191
Rose v Health Commission (NSW) (1986) 2 NSWCCR 32
Category: Principal judgment
Parties: State Super SAS Trustee Corporation Ltd (Appellant)
Scott David Perrin (Respondent)
Representation:
Counsel:
D Stanton/ J Harrison (Appellant)
C Birch SC/ P O’Rourke (Respondent)
Solicitors:
SMK Lawyers (Appellant)
Walter Madden Jenkins (Respondent)

File Number(s): 2015/345370
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2015] NSWDC 345

Date of Decision:

02 November 2015

Before:

Neilson DCJ

File Number(s):

RJ256/13

Judgment

BASTEN JA: The respondent was, until 8 November 2001, a member of the NSW Police Force. On 1 January 1998 he suffered a neck injury in a motor vehicle accident, whilst on duty. He ceased work on 20 July 1998 and was medically…

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: [2016] NSWCA 232
Decision Date: 01 September 2016

CaseChat Overview and Summary

The appeal concerned a former police officer, Mr. Perrin, who sought to set aside a decision by the State Super SAS Trustee Corporation (STC) regarding his entitlement to surgical treatment. The STC had refused to grant a gratuity for proposed neck surgery, deeming it not reasonably necessary. Mr. Perrin had previously been granted a gratuity under s 12D(1) of the *Police Regulation (Superannuation) Act 1906* for a "hurt on duty" injury. The appeal was brought before the Court of Appeal of New South Wales following a decision by the District Court.

The central legal issues before the Court of Appeal were whether the District Court judge erred in law in their determination of Mr. Perrin's entitlement to compensation for surgical treatment. Specifically, the court had to consider whether the proposed surgery was reasonably necessary under s 60 of the *Workers Compensation Act 1987*, and whether the primary judge had correctly found that other causes of Mr. Perrin's neck pain needed to be excluded before the surgery could be considered reasonably necessary. The court also considered whether the STC's decision was made within its incidental powers under s 57 of the *Superannuation Administration Act 1996*.

The Court of Appeal found that the District Court judge had erred in law. The primary judge had imposed a requirement that all other causes of Mr. Perrin's neck pain be excluded before the proposed surgery could be deemed reasonably necessary, a condition not supported by the relevant legislation. The Court of Appeal held that the STC's decision was based on an incorrect understanding of the legal test for reasonably necessary surgical treatment. Consequently, the Court of Appeal allowed the appeal, set aside the District Court's determination and orders, and dismissed Mr. Perrin's appeal to the District Court.

Orders

Orders of the court

(1) Extend the time for filing of the notice of appeal to 7 March 2016.

(2) Appeal allowed.

(3) Set aside the determination and orders made by Neilson DCJ on 2 November 2015 and in place thereof:

(a) Dismiss the appeal to the District Court;

(b) Make no order as to costs of the proceedings in the District Court.

(4) Respondent to pay the appellant’s costs of the appeal in this Court.

(5) Respondent to have a certificate under the Suitors’ Fund Act 1951 (NSW).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	State Super SAS Trustee Corporation Ltd v Perrin [2016] NSWCA 232
Hearing dates:	2 August 2016
Decision date:	01 September 2016
Before:	Basten JA at [1]; Gleeson JA at [32]; Sackville AJA at [81]
Decision:	(1) Extend the time for filing of the notice of appeal to 7 March 2016. (2) Appeal allowed. (3) Set aside the determination and orders made by Neilson DCJ on 2 November 2015 and in place thereof: (a) Dismiss the appeal to the District Court; (b) Make no order as to costs of the proceedings in the District Court. (4) Respondent to pay the appellant’s costs of the appeal in this Court. (5) Respondent to have a certificate under the Suitors’ Fund Act 1951 (NSW).
Catchwords:	APPEAL – appeal from District Court’s residual jurisdiction – whether error in point of law – District Court Act 1973, s 142N – proceedings under Police Regulation (Superannuation) Act 1906, s 21 seeking to set aside decision of STC WORKERS' COMPENSATION – entitlement to compensation - grant of gratuity under s 12D(1) – whether surgical treatment of neck reasonably necessary under Workers Compensation Act 1987, s 60 – whether primary judge found that as a result of certified “hurt on duty” injury proposed surgery reasonably necessary SUPERANNUATION –former police officer – grant of gratuity sought for surgical treatment –decision by STC that proposed surgery not reasonably necessary – finding by primary judge that other causes of officer’s neck pain be excluded before proposed surgery reasonably necessary – whether exercise of incidental power under Superannuation Administration Act 1996, s 57
Legislation Cited:	District Court Act 1973 (NSW) s 142G, 142N Police Regulation (Superannuation) Act 1906 (NSW) s 1, 3, 9A, 10, 10(1A), 10B, 12D, 21 Superannuation Administration Act 1996 (NSW) s 57 Trustee Act 1925 (NSW) s 57 Uniform Civil Procedure Rules 2005 (NSW) r 42.1, 51.9 Workers Compensation Act 1987 (NSW) s 4, 59, 60, 61 and 62
Cases Cited:	Bartolo v Western Sydney Area Health Service (1987) 14 NSWCCR 223 Commissioner of Police v Kennedy [2007] NSWCA 328 Perrin v SAS Trustee Corporation (No 2) [2015] NSWDC 345 Perrin v SAS Trustee Corporation [2014] NSWDC 203 Perrin v SAS Trustee Corporation [2013] NSWDC 191 Rose v Health Commission (NSW) (1986) 2 NSWCCR 32
Category:	Principal judgment
Parties:	State Super SAS Trustee Corporation Ltd (Appellant) Scott David Perrin (Respondent)
Representation:	Counsel: D Stanton/ J Harrison (Appellant) C Birch SC/ P O’Rourke (Respondent) Solicitors: SMK Lawyers (Appellant) Walter Madden Jenkins (Respondent)
File Number(s):	2015/345370
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2015] NSWDC 345 Date of Decision: 02 November 2015 Before: Neilson DCJ File Number(s): RJ256/13