Terry Swift v SAS Trustee Corporation

CITATION:	Terry Swift v SAS Trustee Corporation [2009] NSWDC 149
HEARING DATE(S):	5 June 2009
EX TEMPORE JUDGMENT DATE:	5 June 2009
JURISDICTION:	Civil
JUDGMENT OF:	C Armitage DCJ
DECISION:	I order that the decision of the defendant dated 19 December 2007 backdating the plaintiff's superannuation pension to the date of his application on 1 March 2004 be confirmed.
CATCHWORDS:	Police superannuation - backdating of plaintiff's superannuation allowance to date of medical retirement refused when application made some 20 years after date of resignation.
LEGISLATION CITED:	Police Regulation (Superannuation) Act 1906. Superannuation Legislation Amendment Act 2006 Superannuation Legislation Amendment Regulation 2006. Superannuation Administration Act 1996
CASES CITED:	Maxwell v Murphy (1957) 96 CLR 261 Carr v Finance Corporation Australia Ltd [2] (1982) 150 CLR 139. Hawkesley v May (1956) 1 QB 304 Corin v Patton (1990) 169 CLR 540 Hawkins v Clayton (1988) 164 CLR 539 Hartigan Nominees Pty Ltd v Rydge (1992) 29 NSW LR 432
PARTIES:	Terry Swift (Plaintiff) SAS Trustee Corporation (Defendant)
FILE NUMBER(S):	RJ00243/08
COUNSEL:	Mr G Gemmell (plaintiff) Mr T Ower (defendant)

JUDGMENT

1 HIS HONOUR: By further amended statement of claim filed by leave in court today, without objection from the defendant, the plaintiff claims that the decision of the defendant in terms of s 9A(4)(a) of the Police Regulation (Superannuation) Act 1906 (the Act) dated 19 December 2007 be set aside and that an order in terms of s 9A(4) of the Police Regulation (Superannuation) Act 1906 (as amended currently as at 20 February 2004) be made to the effect that the plaintiff be awarded a superannuation allowance of 72.75 percent of his salary as at the date of discharge and that that payment be backdated from the date of his discharge, being 5 November 1981.

2 The decision of the defendant trustee corporation to which the plaintiff refers in the statement of claim is annexed to it and dated 19 December 2007 and is annexure “A”, and relevantly it provides in a single paragraph that:

“STC have further determined that your pension shall commence from date of application being 1 March 2004.”

3 Counsel have provided me with written submissions and have spoken to them in such a way that has crystallised the issues and I thank them for that. It has enabled me to deliver ex tempore reasons at the conclusion of argument, which is always desirable in this court where much other business awaits a judge’s attention.

4 The plaintiff’s claim is of course resisted by the defendant by the contention that the decision to which I have referred, to backdate the plaintiff’s superannuation pension to the date of his application for it, is correct. That question raises two matters. The first is the application of the Superannuation Legislation Amendment Act 2006 because, as the parties agree, that legislation came into effect between the date of the plaintiff’s application for a retrospective medical discharge from the New South Wales Police Force under s 10B(2) of the Act on 20…