Citation: Day v SAS Trustee Corporation [2020] NSWDC 381
Court: District Court of New South Wales
Date: 14 July 2020
Judge: Neilson DCJ
Background
The plaintiff was a NSW Police sergeant and qualified police prosecutor who contributed to the Police Superannuation Fund from 1980 until his resignation, effective 26 September 1998. In August 1998 he had been certified unfit for duty due to acute anxiety and depressive reaction, and he submitted his resignation the following month. Within months of leaving the Force, he commenced work as a solicitor with the Aboriginal Legal Service and subsequently became a Local Court Magistrate in 2001, though he resigned that commission after roughly a year.
In 2008, the plaintiff applied for a Medical Discharge Benefit under s 10B(2) of the Police Regulation (Superannuation) Act 1906, claiming he had been suffering from chronic adjustment disorder with mixed anxiety and depressive mood at the time of his resignation. The Police Superannuation Advisory Committee (PSAC) declined to certify that he was incapable from an infirmity of mind of discharging his duties, citing insufficient medical evidence. Procedural complications, including misdirection by the defendant about the correct appeal pathway, delayed the matter reaching the District Court for nearly a decade.
The District Court ultimately heard the matter in July 2020, some 22 years after the resignation and a decade after it would ordinarily have been listed. The evidentiary record was significantly compromised by the passage of time: documents had been lost, destroyed, or not subpoenaed, and witnesses were recalling events from up to a quarter-century earlier.
Legal Issues
- Whether the plaintiff was suffering from the claimed infirmity, chronic adjustment disorder with mixed anxiety and depressive mood, "at the time of the member's resignation" within the meaning of s 10B(2)(b) of the Police Regulation (Superannuation) Act 1906.
- What the phrase "at the time of the member's resignation" means in the context of a superannuation scheme, and in particular whether it is limited to the last day of service or something broader.
- Whether the infirmity must be indefinite (rather than temporary or transient) at the time of resignation in order to qualify for a medical discharge benefit.
Decision
Neilson DCJ confirmed the PSAC's decision, declining to certify the plaintiff as entitled to a Medical Discharge Benefit. The court was not satisfied that the plaintiff was disabled from work as a police prosecutor after the end of 1998. His subsequent career, including practising as a solicitor, managing a legal office, and serving as a magistrate, was inconsistent with a continuing incapacity referable to the claimed infirmity.
On the statutory question, the court held that the phrase "at the time of the member's resignation" does not mean simply the last day of service or the day immediately following it. Construed in the context of a superannuation scheme, the words require the decision maker to be satisfied, both at the time of any certification and at the time of resignation, that the member was suffering from the relevant infirmity of mind or body.
The court adopted the dicta of the Industrial Relations Commission in Court Session and held that the infirmity must be indefinite at the time of resignation, not merely temporary or transient. A short-term reaction to workplace circumstances that resolves within months, particularly where the member goes on to undertake demanding professional work, does not satisfy this requirement. The plaintiff's acute anxiety and depressive reaction in mid-1998 did not establish the enduring incapacity the provision requires.
Orders Made
- The decision of the defendant made by its delegate, PSAC, on 30 April 2009 is confirmed.
Key Takeaways
- The District Court held that the statutory phrase "at the time of the member's resignation" in s 10B(2)(b) of the Police Regulation (Superannuation) Act 1906 is not confined to the final day of service; it must be read in the broader context of a superannuation scheme.
- A medical discharge benefit under s 10B(2) requires the decision maker to be satisfied of the relevant infirmity both at the time of certification and at the time of resignation.
- Where a claimant's post-resignation career demonstrates sustained capacity for demanding professional work, that evidence weighs heavily against a finding of continuing incapacity attributable to the claimed infirmity.
- An infirmity that is temporary or transient does not satisfy the requirements of the provision; the incapacity must be indefinite at the point of resignation, consistent with earlier Industrial Relations Commission authority.
- Procedural misdirection by the trustee about the correct appeal pathway contributed to a delay of nearly a decade, illustrating the significance of the Court of Appeal's decision in SASTC v Rossetti [2018] NSWCA 68, which confirmed that appeals of this kind lie to the District Court rather than through the Disputes Committee and the Industrial Relations Commission.
Legislation and Cases Referenced
Legislation
- Police Regulation (Superannuation) Act 1906 (NSW), particularly s 10B(2)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Evidence Act 1995 (NSW)
- Judicial Officers Act 1986 (NSW)
Cases
- SASTC v Rossetti [2018] NSWCA 68
- Johnson v SAS Trustee Corporation [2019] NSWDC 925
- SASTC v Daykin [2002] NSWIRComm 124
- SASTC v Hazlewood [2009] NSWIRComm 157
- Woollard v SASTC [2012] NSWIRComm 51