Terry Swift v SAS Trustee Corporation

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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…

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Details
Case
[2009] NSWDC 149
Decision Date

CaseChat Overview and Summary

The plaintiff, Terry Swift, filed an application against the SAS Trustee Corporation, seeking backdating of his superannuation allowance to the date of his medical retirement. The dispute arose when the defendant refused to backdate the superannuation pension to the date of Swift's resignation, as the application for the superannuation pension was made approximately 20 years after the resignation. The matter was heard in the Federal Court of Australia.

The central legal issue before the court was whether the defendant was required to backdate the plaintiff's superannuation allowance to the date of his medical retirement, given the significant delay in making the application. The court had to consider the relevant provisions of the Superannuation Industry (Supervision) Act 1993, and whether the delay in making the application was a valid reason for refusing the backdating of the superannuation pension. Additionally, the court had to assess whether there were any relevant policies or guidelines that could inform the decision-making process.

In considering the legal issue, the court examined the provisions of the Superannuation Industry (Supervision) Act 1993, and found that there was no obligation on the defendant to backdate the superannuation pension to the date of the plaintiff's medical retirement. The court further held that the significant delay in making the application was a valid reason for refusing the backdating of the superannuation pension. The court also noted that the defendant had acted in accordance with relevant policies and guidelines when making the decision. Consequently, the court confirmed the decision of the defendant dated 19 December 2007, and refused the plaintiff's application for backdating of the superannuation pension.

In conclusion, the Federal Court of Australia confirmed the decision of the defendant, and refused the plaintiff's application for backdating of the superannuation pension. The court found that there was no obligation on the defendant to backdate the superannuation pension to the date of the plaintiff's medical retirement, and that the significant delay in making the application was a valid reason for refusing the backdating of the superannuation pension. The decision was in accordance with the relevant provisions of the Superannuation Industry (Supervision) Act 1993, and relevant policies and guidelines.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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