Wilson v SAS Trustee Corporation

1. [1]

   LEEMING JA: I agree with the orders proposed by Griffiths AJA. I also agree with his Honour’s reasons. The following is by way of emphasis and elaboration, rather than qualification, and presupposes familiarity with those reasons.

2. [2]

   The parties provided considerable assistance in narrowing the issues in this Court, by agreeing that the resolution of this appeal turned on whether the respondent had power to certify the infirmity now claimed as incapacitating him from performing the duties of his office. If there was power, the respondent conceded error and that the matter would have to be remitted. If there was no power, then the appellant accepted that the appeal must be dismissed. The concessions from each side leading to that common position were properly made.

3. [3]

   The dispositive issue, then, is one of statutory construction. The following matters emerge from the regime (I shall focus upon the provisions as they were in 2000).

4. [4]

   First, an entitlement to the annual superannuation allowance for a disabled member of the police force on the basis that the officer was hurt on duty turned upon a certificate from STC and a decision by the Commissioner. The certificate could be granted under either s 10B(1) or (2). Both of those provisions precluded the granting of annual superannuation allowance unless STC “has certified” the member’s incapacity, and s 10B(3) refers in terms to “the certificate” which will in turn identify an infirmity which the Commissioner must decide has or has not caused the member or former member to have been hurt on duty.

5. [5]

   Secondly, subsections (1) and (2) of s 10B distinguish between members of the police force who are discharged, and former members who resigned or retired. The former must have a certification at the time of their discharge (bearing in mind that the discharge may be a process itself occupying some weeks or months), while the latter required an application after the event, namely, after the officer has resigned or retired.

6. [6]

   Thirdly, s 21 gave an officer or former officer a right of appeal first to the Compensation Court or, after its abolition in 2002, to the District Court, and that Court would either confirm or set aside the decision and replace it with a different decision. The decision of the Court was deemed to have been made by STC or the Commissioner of Police.

7. [7]

   Fourthly, the superannuation allowance for members being hurt on duty comprised, pursuant to s 10(1A), 72.75% of the member’s attributed salary plus “an additional amount” up to a maximum of 12.25% of the member’s attributed salary, which depended upon the STC’s opinion of the member’s incapacity for work outside the police force. Section 10(1D) expressly authorised STC to vary any determination of the additional amount of the superannuation allowance “at any time”.

8. [8]

   The question is, having regard to considerations of the purpose of the scheme and coherence with the totality of the statutory provisions, whether there is the power for which Mr Wilson contends to revisit his circumstances and either issue a new certificate or amend the existing certificate so that his PTSD is included in it.

9. [9]

   Like many questions of statutory construction, the issue arising is one that has not been explicitly addressed. Nonetheless, it falls to be determined according to what emerges from the text, context and purpose of the regime.

10. [10]

    Many indications tell against the construction for which Mr Wilson contends. One is the difficulty that would be encountered if the original certificate had been issued by the Compensation Court. It is to be borne in mind that the right of appeal when exercised results in a judgment binding both the member and STC. It is difficult to avoid the conclusion that a subsequent application to vary the certificate or issue a separate one would be inconsistent with that judgment. Nothing in the regime encourages the conclusion that it displaces principles of finality of judgments and res judicata which would be generated by a judgment of the Compensation Court.

11. [11]

    A second is the express entitlement in some respects to make applications at any time in the future, notably pursuant to s 10(1D) in respect of an entitlement to an “additional amount”, although, as Mr Emmett candidly acknowledged, that amounts to an expressio unius argument, warranting only cautious reliance.

12. [12]

    A third is the proposition that the regime depends upon a formal document, namely, the certificate to be issued by STC. Section 10B(3)(a) presupposes that there is to be a single certificate. Nothing in the regime suggests how the power to amend or replace would operate in practice (including delivery up and destruction of the earlier certificate, and whether the alterations would have retrospective or only prospective effect).

13. [13]

    A fourth is that there was no suggestion that any exercise of a power to revisit a certificate would necessarily be to the advantage of the member. Thus one consequence of accepting the appellant’s construction is that members who had the benefit of a certificate might be exposed to the possibility of a review of the question of incapacity, perhaps many years after the event. That sits ill with the way schemes such as this operate. There is a great deal to be said that the purpose of the scheme would be enhanced by having the entitlement to an annual superannuation allowance determined once and for all, rather than exposing recipients of superannuation payments to the risk that at some unspecified time, possibly far in the future, an application might be made to alter the formal certificate on the basis of which their superannuation was based.

14. [14]

    All of those considerations tend to reinforce the consequence which emerges from the textual considerations explained by Griffiths AJA, namely, that the certification under s 10B(1) which is a precondition to any entitlement to the superannuation allowance is to occur once and for all at around the time of discharge.

15. [15]

    KIRK JA: I agree with Griffiths AJA and agree, too, with the additional remarks of Leeming JA.

16. [16]

    GRIFFITHS AJA: This appeal is from a judgment and orders made by Neilson DCJ on 27 June 2023 (Wilson v SAS Trustee Corporation (No 4) [2023] NSWDC 224 (PJ or Wilson (No 4)). The reasons for judgment were published approximately 20 months after a two day hearing on a separate question concerning jurisdiction and, subsequently, a six day trial in the District Court in October 2021.

17. [17]

    The central issue in the appeal, which is one of statutory construction, is whether the primary judge erred in implicitly concluding that the respondent lacked power in December 2019 to certify the condition of post-traumatic stress disorder (PTSD) as an additional infirmity pursuant to s 10B(1) of the Police Regulation (Superannuation) Act 1906 (NSW) (1906 Act) in circumstances where a certificate of infirmity had issued to the appellant on 29 March 2000 certifying a different condition as the relevant infirmity. In other words, did the respondent in December 2019 (and subsequently the District Court) have power to certify a further infirmity or amend the 29 March 2000 certificate? The appellant advanced an alternative formulation of the issue, namely whether the respondent was functus officio (in which case the District Court lacked jurisdiction under s 21(4) of the 1906 Act).

18. [18]

    These issues are raised by grounds 3 and 4 of the notice of appeal. It was common ground that the determination of those grounds would be dispositive of the appeal. The parties also agreed that, if the appeal were allowed, the matter should be remitted to a judge of the District Court other than the primary judge. Finally, the appellant confirmed that he did not press the part of his notice of appeal which related to the primary judge’s separate determination regarding the decision dated 21 February 2019 by the Police Superannuation Advisory Committee (PSAC) under s 10(1A)(b) of the 1906 Act to increase his annual superannuation allowance from 72.75% to 77.11%. The primary judge set aside PSAC’s decision and approved an increase of his allowance to 79.67% (PJ[209]-[211]).

19. [19]

    The parties are to be commended for cooperating and helpfully narrowing the ambit of the appeal in this way.

Background facts summarised

1. [20]

   In brief, the appellant is a former NSW police officer, having been attested as a probationary constable in 1982 and ultimately medically discharged from his duties on 6 April 2000. Shortly beforehand, on 29 March 2000, the PSAC certified under s 10B of the 1906 Act that the appellant was unfit for duties because he suffered from the infirmity of “chondromalcia (sic) patellae left knee” (the certificate). The appellant was told that the respondent had informed the NSW Police Service of the certificate “for consideration of your discharge” and that upon notification of discharge, arrangements would be made by the respondent to pay the appellant his superannuation benefit. The PSAC was acting as the respondent’s delegate (see s 2J of the 1906 Act).

2. [21]

   On 4 April 2000, a delegate of the Commissioner of Police determined under s 10B(3)(a) of the 1906 Act that the appellant’s infirmity was caused by him being “hurt on duty” (the determination). The determination stated that the date of injury was 30 December 1997. As noted above, the appellant was then formally discharged from the Police Force on 6 April 2000.

3. [22]

   The certificate and determination both having been­­­­ issued and the appellant discharged, the respondent informed the appellant by letter dated 18 April 2000 that he would receive an “annual superannuation allowance” (hurt on duty pension) equal to 72.75% of his annual salary at the date of discharge (as calculated under s 10(1A) of the 1906 Act). This allowance was greater than that payable to a member who was not hurt on duty but who had served 20 years or more and retired after attaining the age of 60 years (see s 7, noting that a basic allowance could also have been paid if the member had served for 20 years but not yet reached 60 as long as they were certified under s 8(1) to be incapable, from infirmity of mind or body, of discharging the duties of their office).

4. [23]

   The appellant was also advised by the respondent’s letter dated 18 April 2000 that his Basic Benefit of $17,742.90 had been preserved (the Basic Benefit being a distinct and separate benefit granted under the State Authorities Non-contributory Superannuation Act 1987 (NSW)). He was also told he was entitled to apply for additional benefits under s 10(1A) of the 1906 Act, the amount of which would depend on an assessment of the PSAC or the Police Medical Board of the extent of his capacity for work outside of the Police Force. The appellant did not seek an increase under this provision until March 2017. In the interim, after his discharge, he worked for several different entities outside the Police Force.

5. [24]

   As will be developed further below, persons such as the appellant were also able to obtain “gratuities” under s 12D of the 1906 Act, in addition to the annual superannuation allowance and the additional benefits. The appellant himself obtained such gratuities in December 2000, an amount of $16,875 for 22.5% loss of the left leg at or above the knee and, in March 2001, an amount of $15,000 for pain and suffering.

6. [25]

   In March 2017 (i.e., almost 17 years after he had been discharged), the appellant applied under s 10(1A)(b) of the 1906 Act for his annual superannuation allowance to be increased and backdated to 6 April 2000 (the date of his discharge) on the basis of an increase in his incapacity for work outside the Police Force. The respondent arranged to have the appellant examined by various medical practitioners.

7. [26]

   Subsequently, by letter dated 16 January 2018, the respondent informed the appellant that there was some medical evidence that he may suffer from an infirmity that was not included in the certificate. PTSD was identified as one of the uncertified infirmities. The appellant was given the option of having the identified uncertified infirmities taken into account by the respondent in assessing his application to increase his superannuation allowance in accordance with the decision of this Court in Miles v SAS Trustee Corporation [2017] NSWCA 86, or he could await the outcome of the High Court appeal from that decision. The relevant issue there was whether the expression “incapacity for work outside the police force” in s 10(1A)(b)(ii) of the 1906 Act means the member’s incapacity from the specified infirmity of body or mind caused by the member being hurt on duty as opposed to incapacity for work outside the Police Force howsoever caused.

8. [27]

   After obtaining his own medical reports (including one dated 31 October 2019 by a consultant psychiatrist, Dr Jeff Bertucen), on 18 November 2019 the appellant lodged an application under s 10B(2) of the 1906 Act for a hurt on duty pension, relying upon the infirmity of PTSD. By a letter dated 3 December 2019, the respondent told him that the application was invalid and that it had no power to deal with it because the appellant had not resigned or retired from the Police Force.

9. [28]

   By letter dated 3 December 2019, the appellant lodged a fresh application under s 10B(1) of the 1906 Act for his s 10B(1) certificate to be amended to include the infirmity of PTSD.

10. [29]

    After further correspondence from the appellant’s solicitors, by letter dated 4 December 2019, the respondent advised the appellant that it had no power to grant the request to amend the s 10B(1) certificate as it was functus officio. This was because a decision had been made on 29 March 2000 by the respondent’s delegate, PSAC, to grant a certificate under s 10B(1) and the appellant had not challenged that decision.

11. [30]

    After further correspondence between the parties, on 19 May 2020, the appellant commenced proceedings in the District Court under s 21(4) of the 1906 Act. He sought orders to set aside the respondent’s decisions dated 29 March 2000 and 3 and/or 4 December 2019. He also sought an order that he be granted a certificate of incapacity under either ss 10B(1) or (2) of the 1906 Act that he was incapacitated from his duties as a consequence of the infirmity of PTSD. Alternatively, he sought an order that his application dated 18 November 2019 be remitted to the respondent for determination.

The legislation summarised

1. [31]

   Before descending into the detail of this complex and fluid statutory scheme, it might be helpful to provide a broad overview of that regime at times which are relevant to the appellant’s circumstances (namely March/April 2000 and December 2019). I shall generally refer to the relevant statutory provisions using the present tense. It may be interpolated that the scheme has been amended several times, most significantly in 1979, 1987, 1996 and 2002.

2. [32]

   The Police Superannuation Fund is established by s 3 of the 1906 Act. Members of the Fund are required to contribute 6% of their salary (s 5). The respondent is the statutory trustee of the Police Superannuation Scheme (see the definition of “STC scheme” in ss 4 and 49 of the Superannuation Administration Act 1996 (NSW)).

3. [33]

   Part 4 of the 1906 Act provides for superannuation benefits for police officers. Officers who have served 20 years or more and are aged 60 years or more on retirement are entitled to benefits under s 7 (see also s 8). Higher benefits are payable to officers who are certified as being hurt on duty (see s 10).

4. [34]

   The definition in s 10(1) of “disabled member of the police force” draws a distinction between two classes of Police Force members. The first class comprises a member who “is discharged”. Such a person (of whom the appellant is one) is not entitled to be granted an annual superannuation allowance unless, inter alia, the respondent “has certified the member to be incapable, from a specified infirmity of body or mind, of discharging the duties of the member’s office” (see s 10B(1)).

5. [35]

   The second class comprises a former member of the Police Force who has resigned or retired. For such a person to qualify for an allowance, the following three requirements set out in s 10B(2) have to be met:

6. [36]

   “Retired” is defined in s 10(1) to include “discharged” as referred to in either ss 7 or 14. Neither of those provisions are presently relevant.

7. [37]

   To be entitled to receive an annual superannuation allowance under s 10, a person not only needs to fit within one of the two classes described above, but it is also a necessary precondition for the Commissioner of Police to determine pursuant to s 10B(3) that the infirmity to which the s 10B(1) or (2) certificate relates was caused by the member or former member being hurt on duty.

8. [38]

   To sum up, under this statutory regime, to receive an annual superannuation allowance where a member is hurt on duty, both a certificate and a separate determination have to be obtained:

9. [39]

   Where a member or former member satisfies the definition of “disabled member of the police force”, he or she is entitled to receive an annual superannuation allowance which is calculated with reference to the various elements set out in s 10(1A). The amount comprises a base level amount fixed at 72.75% of the member’s attributed salary of office (as defined in s 10(1)) and, potentially, some additional amounts under ss 10(1A)(b) or (c).

10. [40]

    More generous benefits are conferred upon a person who is a “disabled member of the police force”, as opposed to a member who qualifies for an annual superannuation allowance under s 7. This is because of the availability of additional payments under ss 10(1A)(b) or (c) and the possible payment of gratuities under s 12D, to which I now turn.

11. [41]

    Section 12D of the 1906 Act provides for “gratuities” to be paid to members and former members who are hurt on duty. The gratuities are equivalent to benefits available to injured workers under Divs 3, 4 and 5 of Pt 3 of the Workers Compensation Act 1987 (NSW). The terms of s 12D are set out at [46] below. It may be noted, however, that a gratuity is not available if the member or former member is not in receipt of an annual superannuation allowance under s 10 (see s 12D(3)) unless the Commissioner of Police, inter alia, determines (at the request of the respondent) that the injury to which the claim relates was caused by the member or former member being hurt on duty while being a member of the Police Force.

12. [42]

    It is also relevant to note the respondent’s statutory power under s 16 to require a former member of the Police Force who is discharged because of incapacity and who is in receipt of an annual superannuation allowance under ss 7 or 10 to submit to a medical examination. Subsequently, in certain circumstances and with the approval of the Commissioner of Police, the respondent may cancel or suspend the annual superannuation allowance, and require the former member to serve again in the Police Force.

13. [43]

    In 1987, the 1906 Act was amended such that the Police Superannuation Fund was closed to new members from 1 April 1988 (see Police Regulation (Superannuation) Amendment Act 1987 (NSW)). This does not affect the appellant, who was a member prior to 1 April 1988.

14. [44]

    With those broad introductory remarks in mind, I shall now set out the relevant provisions of the 1906 Act (as in force in March/April 2000). Section 10 of the 1906 Act is the source of the power to grant an annual superannuation allowance where a member is hurt on duty. It provides (noting that s 10(1) contains several relevant definitions):

15. [45]

    As noted, s 10B prohibits the grant of an annual superannuation allowance under s 10 unless the respondent certifies that a member of the Police Force who is discharged is incapable, from a specified infirmity of body or mind, of discharging the duties of the member’s office. A distinction is drawn between a disabled member who is discharged from duties (i.e., s 10B(1)) and a member who has resigned or retired (i.e., s 10B(2)). Section 10B provides:

16. [46]

    As noted above, s 12D provides for the payment of “gratuities” to members or former members hurt on duty:

17. [47]

    Section 21 of the 1906 Act provides for rights of review of the respondent’s decisions on a matter that arises under the Act by reason of a member of the Police Force being hurt on duty, as well as decisions made by the Commissioner of Police under, inter alia, s 10B(3)(a). Section 21 provides:

18. [48]

    In 2002, s 21 was amended so as to replace the Compensation Court with the District Court (see Compensation Court Repeal Act 2002 (NSW)).

19. [49]

    As noted above, the 1906 Act has been frequently amended. For completeness, the amendments may be summarised as follows (noting, however, that the appellant did not contest the respondent’s submission that these amendments have no bearing on the central issue of statutory construction on the appeal):

20. [50]

    With regard to the question whether the respondent was functus officio, the appellant relied upon s 48(1) of the Interpretation Act 1987 (NSW), which provides (subject to a contrary intention):

21. [51]

    Finally, reference should be made to s 142N of the District Court Act 1973 (NSW) (as in force in May 2020). It confers a right of appeal to the Court of Appeal by an aggrieved party in any proceedings before the District Court in its compensation jurisdiction. The right of appeal is from an award of the District Court “in point of law or on a question as to the admission or rejection of evidence”. On the meaning of the expression “in point of law” see Fisher v Nonconformist Pty Ltd [2024] NSWCA 32.

22. [52]

    In an appeal to this Court under s 142N of the District Court Act, the Court may remit the matter to the District Court in its compensation jurisdiction for determination by that Court in accordance with any decision of this Court, and make any such other order as this Court sees fit.

23. [53]

    The respondent did not claim that the appeal to this Court was invalid. Nor did it contend that leave to appeal was required (see s 142N(4)).

The primary judgments summarised

1. [54]

   As noted at [16] above, the proceedings below commenced with a two day hearing on a separate question relating to jurisdiction. After two days of hearing, the primary judge decided to revoke the order for a separate hearing and to proceed to conduct a full trial (see Wilson v SAS Trustee Corporation (No 1) [2020] NSWDC 804). This course was taken on the basis of the primary judge’s assessment that the issues were more extensive than initially perceived.

2. [55]

   A six day trial then ensued and evidence was given by various witnesses, including the appellant.

3. [56]

   On the second day of the trial, the appellant asked the primary judge to recuse himself based upon an exchange he had with the then plaintiff while he was giving his oral evidence. The application was refused (see Wilson v SAS Trustee Corporation (No 2) [2021] NSWDC 840). It is unnecessary to take this matter any further because the appellant did not press his grounds of appeal which claimed both actual and apprehended bias.

4. [57]

   The primary judge addressed two applications. The first application (RJ 258 of 2019) sought an increase in the appellant’s pension entitlement since the date of his discharge. Nothing more needs to be said about this matter because, as noted above, the appellant did not press this part of his notice of appeal.

5. [58]

   The second application (RJ 171 of 2020) related to the respondent’s position that it lacked power to certify the condition of PTSD as an additional infirmity under s 10B(1) of the 1906 Act. The question whether or not the respondent had power to determine that application necessarily affected the District Court’s jurisdiction under s 21(4).

6. [59]

   As noted above, the primary judge then reserved his judgment for approximately 20 months. The reasons for judgment in Wilson (No 4) total 213 paragraphs and take up more than 100 pages. The vast bulk of the reasons relate not directly to questions of power and/or jurisdiction, but rather go to the substantive merits of the appellant’s claim.

7. [60]

   It is well established that where a point arises as to jurisdiction (even if it is not raised by the parties), the Court’s duty is to determine that matter first (see, e.g., SAS Trustee Corporation v Rossetti [2018] NSWCA 68 at [3] and the cases cited therein).

8. [61]

   It is not easy to understand the primary judge’s approach. By descending into the merits of the claim in considerable detail, the parties were not only deprived of a prompt ruling on power and/or jurisdiction but, as the appellant correctly pointed out, the primary judge’s rulings on jurisdiction can only be divined by a process of implication and extrapolation from the lengthy reasons for judgment in Wilson (No 4). At no point did the primary judge clearly and explicitly state his conclusions on the issues of power and/or jurisdiction.

9. [62]

   The parties both conducted the appeal on the basis that the primary judge found that neither the respondent nor the District Court had power and/or jurisdiction to entertain the then plaintiff’s application dated 3 December 2019 to have the original certificate amended so as to include the infirmity of PTSD.

Consideration and disposition

1. [63]

   The central issue for determination here is different from that which arose in SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55. As noted at [26] above, the issue there was the meaning of the expression “incapacity for work outside the police force” in s 10(1A)(b)(ii) of the 1906 Act. But the High Court’s approach to statutory interpretation in resolving that issue provides powerful guidance for resolving the central and different issue here. That is not only because the Court confirmed the now well established importance of text, context and purpose in contemporary statutory interpretation, but also emphasised that coherence (which is related to purpose) is an important consideration, including in a case where there is a “constructional choice” (see at [17] and [20] per Kiefel CJ, Bell and Nettle JJ).

2. [64]

   The importance of coherence was given particular emphasis by Gageler J, who stated at [41] (footnotes omitted, emphasis added):

3. [65]

   Applying those principles of statutory construction (and with some degree of repetition), it is well to start by contrasting the terms of ss 10B(1) and (2). Those terms are set out at [45] above. These provisions preclude the grant of an annual superannuation allowance under s 10 unless certain requirements are met in respect of persons who fall into either of two different classes. The first class (i.e., that in s 10B(1)), relates to a member of the Police Force who is discharged. The certificate referred to therein is one that certifies the member to be incapable of discharging their duties, arising from a specified infirmity. The certificate must specify the infirmity of body or mind which renders the member to be incapable of discharging the duties of their office.

4. [66]

   The second class (i.e., s 10B(2)) relates to a former member of the Police Force who has resigned or retired. Such a person is not entitled to be granted an annual superannuation allowance under s 10 unless each of the three requirements set out in sub-paras (a), (a1), and (b) are satisfied. The first two of those requirements concern notification of the injury to the Commissioner of Police. The third requirement concerns a certification of incapability by the respondent. As noted above, this sub-section did not apply to the appellant because he was not a former member who resigned or retired.

5. [67]

   Whichever path is followed, there is an additional requirement that the Commissioner of Police make a determination under s 10B(3)(a). That separate requirement may be put to one side for the moment.

6. [68]

   In considering the coherence of the scheme, it is important to note that, while there are different requirements pertaining to the two paths to certification under ss 10B(1) and (2) respectively, those requirements serve a common goal of promoting finality and certainty in the scheme. In the case of s 10B(1), a member of the Police Force who is discharged cannot be granted an annual superannuation allowance unless the respondent has certified the member to be incapable of discharging the duties of their office because of a specified infirmity of body or mind. In determining whether or not to issue such a certificate, the respondent must have regard to medical advice on the condition and fitness for employment of the member.

7. [69]

   The critical point is that these matters are all interrelated and are likely to occur around the same time, which time is focused on the decision whether or not to grant an annual superannuation allowance. A person who meets the first part of the definition of “disabled member of the police force” can only be granted an annual superannuation allowance if, when the decision is being made, the respondent has certified the member to be incapable of discharging the duties of office with reference to a specified infirmity of body or mind and the person is discharged. It is also notable that, in deciding whether or not to grant the certificate, the respondent must have regard to medical advice. These various matters all fall to be determined conjunctively. The scheme is not one which contemplates the possibility of a disabled member of the Police Force who is discharged and is granted an annual superannuation allowance under s 10, after meeting the requirements of s 10B(1), applying subsequently and possibly many years later with reference to a different infirmity of body or mind.

8. [70]

   That is not to say that the effect of s 10B(1) is that any certification must always occur after a member has been formally discharged. That is not what in fact occurred here. The certificate is dated 29 March 2000 and the appellant was not formally discharged until 6 April 2000. No party suggested that this sequence of events was unlawful. They were correct not to do so. Sections 10 and 10B need to be read together. The definition of “disabled member of the police force” in s 10(1)(a) makes explicit reference to a member who “is discharged after being certified, pursuant to section 10B(1), to be incapable” (emphasis added). Necessarily, therefore, any certification under s 10B(1) occurs before the person is formally discharged.

9. [71]

   Section 10B(1) makes sense when it is appreciated that the prohibition it imposes operates to preclude the grant of an annual superannuation allowance to a person who falls within the first class of the definition of “disabled member of the police force” in s 10(1)(a). The decision whether or not to grant such an allowance to such a person will arise after a decision has been made to discharge the member from the Police Force on the ground of incapability. It will also arise after there is a decision by the respondent to certify incapability under s 10B(1).

10. [72]

    All these matters weigh against the appellant’s preferred construction. Further support for the respondent’s construction is provided by the contrast in the processes under ss 10B(1) and (2), to which I will now turn.

11. [73]

    The process under s 10B(1) is to be contrasted with the respondent’s certification role under s 10B(2)(b), where a former member of the Police Force has resigned or retired. Certification of incapability relates to an earlier point in time than is the case under s 10B(1). Under sub-section (1), the respondent must certify the member “to be incapable” (emphasis added), from a specified infirmity of body or mind, of discharging the duties of office. In contrast, under sub-section (2)(b), the required certification from the respondent is that the former member “would have been incapable” (emphasis added), from an infirmity of body or mind to which the notified injury relates of discharging the duties of office at the time of the member’s resignation or retirement.

12. [74]

    It is evident that the timing of the operation of ss 10B(1) and (2) is quite different. The former provision operates with reference to the time of a member’s discharge, whereas sub-section (2) looks backwards to the time of the member’s resignation or retirement. This difference in timing between the sub-sections is further highlighted in ss 10B(2A) and (2B), which respectively refer to sub-sections (1) and (2). Sub-section (2A) is relevant to the first pathway. Its focus is on whether the respondent has certified that the member “is incapable” of discharging their duties. Such a certification may only be given “if the member is incapable of discharging the duties of the office in the police force in which the member is then employed…” (emphasis added).

13. [75]

    In further contrast with sub-section (1), it should again be noted that in sub-section (2), there is a requirement of prior notification of injury in the case of a member who has retired or resigned. The notification must also be given in the prescribed form, where such a form exists. The notification is to be given to the Commissioner of Police before the member’s resignation or retirement and within six months of receiving the injury which has caused the member’s infirmity of body or mind.

14. [76]

    As the respondent submitted, the evident purpose of these requirements is to ensure that, in the case of a member who resigns or retires, notice of an injury which has caused the member’s infirmity has been given to the Commissioner of Police so that relevant persons are aware of at least the potential for a future claim to be made for an annual superannuation allowance in respect of the infirmity. I accept the respondent’s submission that these time limits reflect a statutory policy of drawing lines so as to inject a measure of certainty into the operation of the scheme and the potential liability of the fund. A similar policy is manifested in the time limit imposed by s 21(1) for seeking a review, now by the District Court.

15. [77]

    It is true that no similar distinct time limit applies to the path provided by s 10B(1). But no significance attaches to that omission in terms of statutory interpretation because, as emphasised above, the relevant functions of both the respondent (i.e., certification) and the Commissioner of Police (i.e., determination regarding being hurt on duty) fall to be exercised at or around the time of discharge. I accept the respondent’s submission that the absence of the term “specified” in s 10B(2) (and in the related definition in subsection (b) of “disabled member of the police force” in s 10(1)), strongly indicates that the specification of infirmity must, for the purpose of s 10B(1), occur at the time of discharge. This sits uncomfortably with the proposition that those functions may also need to be exercised by both the respondent and the Commissioner of Police on occasions which are subsequent to the time of discharge. The point is further reinforced by the fact that the definition of “disabled member of the police force” in paragraph (a) of s 10(1) refers to a member “who is discharged after being certified…” (emphasis added).

16. [78]

    I accept the following submission by the respondent in its written outline of submissions:

17. [79]

    There is a further matter which weighs against the appellant’s construction. It relates to the significance of the fact that the statutory scheme includes a right of review under s 21 of certain decisions of the respondent and the Commissioner of Police. The terms of s 21 are set out at [47] above. There are two points to note about this provision. First, the limitation period of six months reflects the need for certainty and finality, as one might expect in a contributory superannuation scheme such as this. Secondly, it is notable that if the District Court decides to set aside a relevant decision of the respondent or the Commissioner of Police and replace it with a different decision, that decision must be one which could have been made by the respondent or the Commissioner of Police, as the case may be. In that sense, the District Court stands in the shoes of the respondent or the Commissioner of Police depending upon which decision is challenged.

18. [80]

    It is unnecessary in this proceeding to determine whether a person aggrieved by a decision of the respondent regarding, for example, the correctness of a particular infirmity specified in a certificate issued under s 10B(1) could rely upon a different infirmity in a District Court review under s 21.

19. [81]

    I do not accept the appellant’s submission that the task of statutory interpretation here is greatly assisted by the proposition that the 1906 Act confers valuable rights on police officers in exchange for their services and it should be viewed as remedial or beneficial. The difficulty with that proposition is that while it may be accepted that a central purpose of the legislation is to confer benefits on members of the Police Force, the Act also imposes certain limitations on both eligibility to be granted those benefits and the amount of the benefits. As the respondent correctly pointed out, it is important not to make a priori assumptions about whether the legislature intended to provide an annual superannuation allowance for all infirmities which may have been caused by a member of the Police Force being hurt on duty, irrespective of when that infirmity manifested itself. The 1906 Act represents a balance between competing considerations.

20. [82]

    Nor do I consider that the appellant’s preferred interpretation is supported by the notion of “accrued rights”. That simply begs the question as to the nature and content of those rights, which turns on a proper construction of the relevant provisions. As I have explained, I do not consider those rights extend to a right to have the respondent (or the District Court) certify an additional infirmity to that which is the subject of a certificate granted at an earlier time under s 10B(1).

21. [83]

    As noted above, the appellant contended that his preferred construction was assisted by s 48 of the Interpretation Act. I do not accept that contention. First, s 48 adds nothing to the task of construing the relevant provisions of the 1906 Act. It is well settled that s 48 does not itself provide a source of substantive power. That source must be found in the legislative instrument to which the Interpretation Act applies. Secondly, and in any event, s 48 does not apply where a contrary intention is evinced in the other legislation. For the reasons given above, that is the case here, having regard to the meaning and effect of provisions such as ss 10 and 10B.

22. [84]

    It is desirable to now say something briefly about the relationship between the 1906 Act and benefits available under workers’ compensation legislation. As the appellant correctly pointed out, it was made clear in the second reading speech to the Bill which introduced the 1979 amendments (Police Regulation (Superannuation and Appeals) Amendment Bill 1979) that there was an intention to provide police with “improved benefits which are currently available to the rest of the community generally under the Workers’ Compensation Act” including by granting an annual superannuation allowance to a member of the Police Force who is incapable of discharging the duties of their office due to an infirmity caused by an injury received in the actual execution of police duties.

23. [85]

    That is not to say, however, that the two statutory compensation regimes are identical. Indeed, the appellant made clear at [51] of his outline of written submissions that he did not challenge the primary judge’s statement at PJ[184] that the 1906 Act “makes no provision for latent diseases, as modern limitation statutes do”.

24. [86]

    Finally, brief mention should be made of a matter which was raised by the Court during the course of the hearing and in respect of which the parties provided supplementary notes with leave. It concerns the question whether the issues of statutory construction were affected by legislative provisions relating to State records. This consideration adds some limited weight to the respondent’s position.

25. [87]

    The parties were agreed that records relating to the employment or service of a police officer are those defined as a “State record” in s 3 of the State Records Act 1998 (NSW) (SR Act). It is an offence under s 21 to damage or dispose of a State record, but not if the records are dealt with either in accordance with normal administrative practice in a public office (s 21(2)(a)) or any practice or procedure approved by the State Records Authority (s 21(2)(c)). Similar provisions were contained in the now repealed Archives Act 1960 (NSW) (see in particular ss 2, 14 and 15).

26. [88]

    Various procedures or protocols have been approved for the purposes of s 21(2)(c) of the SR Act. They include General Disposal Authority 3 (Personnel Records) and General Disposal Authority 2 (Administrative Records), both of which were in force when the appellant was discharged. The former Authority relevantly provided that a personnel file, subject to certain exceptions such as leave applications, should be retained until the employee reaches 70 years of age. The latter Authority provided that workers’ compensation files should be retained for 20 years after the action was completed and that any records relating to accidents to staff which did not result in Workers’ Compensation claims could be destroyed seven years after “action completed”.

27. [89]

    At all times since it was introduced, s 10B(2) of the 1906 Act has included a requirement that the Commissioner of Police be notified of an injury by a former member before their resignation or retirement and within six months of receiving the injury. There has not been an equivalent requirement in s 10B(1), however, when s 10B was introduced, the statutory context included the Archives Act and the existence of protocols issued by the Archives Authority, which included the original form of the two General Disposal Authorities described above.

28. [90]

    The parties were agreed that, whether the position is looked to at the time s 10B was introduced, at the time the appellant was discharged or at the present time, there has been an expectation that employment records would be kept for a considerable period of time, but records of incidents themselves would not necessarily be required to be kept if it was not perceived at the relevant time that the incident caused injury or death.

29. [91]

    These matters provide some limited support for the respondent’s position that the notification requirements in s 10B(2)(a) have important practical work to do because they ensure that the Commissioner of Police has notice that records relating to a particular injury might need to be kept beyond the authorised minimum period on the basis that they are records of the police officer being hurt on duty. No assumption can be made that all such relevant records would have been retained according to the obligations in force under either the SR Act or its predecessor.

Conclusion

1. [92]

   For these reasons, I would dismiss the appeal, with costs. There is no need to determine the respondent’s notice of contention.