SAS Trustee Corporation v Colquhoun

1. [1]

   MEAGHER JA: I agree with White JA.

2. [2]

   WHITE JA: This is an appeal from a determination by a District Court judge (Kearns ADCJ) in the exercise of the District Court’s compensation jurisdiction that the respondent’s entitlement to an annual superannuation allowance under s 10 of the Police Regulation (Superannuation) Act 1906 (NSW) (“the Act”) be backdated 10 years before the date of his application (Colquhoun v SAS Trustee Corporation, District Court (NSW) Kearns ADCJ,16 December 2021).

3. [3]

   For the reasons which follow I would dismiss the appeal.

4. [4]

   The respondent, Mr Thomas Colquhoun, is a former member of the NSW Police Force. He was attested a probationary constable on 19 September 1973 and resigned on 14 December 1993 with the rank of Senior Sergeant.

5. [5]

   On 21 August 2012 the respondent applied for an annual superannuation allowance pursuant to s 10 of the Act as a “disabled member of the police force”. The application was received by the appellant on 24 August 2012.

6. [6]

   Section 10(1) relevantly defines a “disabled member of the police force” to include:

7. [7]

   Section 10B(2) and (3) relevantly provide:

8. [8]

   The “STC” referred to in s 10B(2)(c) is the appellant, SAS Trustee Corporation.

9. [9]

   No issue arose in relation to the requirements under s 10B(2)(a) or (2)(b). On 30 or 31 July 2015 the appellant decided to decline the respondent’s application on the basis that s 10(2)(c) of the Act was not satisfied.

10. [10]

    Section 21(1) of the Act provides:

11. [11]

    The hearing under s 21 is a hearing de novo (Daley v SAS Trustee Corporation (2016) 92 NSWLR 525; [2016] NSWCA 111 at [50]). On 19 March 2019, Quirk ADCJ made the following orders:

12. [12]

    On 18 March 2020, the Commissioner of Police by his delegate determined, pursuant to s 10B(3) of the Act, that the respondent’s infirmity of “anxiety/depression” was caused by the member’s having been hurt on duty.

13. [13]

    Section 9A of the Act provides:

14. [14]

    In his application of 21 August 2012, the respondent marked the box “No” in answer to the question, “Are you seeking to have the pension commence from a date that is earlier than the date of the application?”.

15. [15]

    On 18 February 2021 the appellant decided that the respondent’s pension commencement date was to be 24 August 2012, the date on which the appellant received the respondent’s application.

16. [16]

    The primary judge recorded that on 2 November 2020 the respondent applied to have his pension backdated to the day after his resignation, that is, 15 December 1993. That application was rejected. The appellant filed a further application under s 21 of the Act to the District Court to set aside the decision of the appellant refusing his backdating application. No issue was taken before the District Court as to whether the application for the backdating of the annual superannuation allowance was a new application under s 10 and out of time (s 10(1BA)). Nor was that issue raised on appeal.

17. [17]

    On 16 December 2021 the primary judge made the following determination:

18. [18]

    The appellant appeals pursuant to s 142N of the District Court Act 1973 (NSW). The proceedings before the District Court were in what is now called its “compensation jurisdiction” (District Court Act 1973 s 142G(c)). The appeal lies to this court, relevantly, where the party “…is aggrieved by an award of the Court in point of law” (s 142N(1)). The point of law is the subject matter of the appeal (SAS Trustee Corporation v Arthur Cox [2011] NSWCA 408 at [82] and cases there cited; see also Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [3]-[6], [22]).

Primary Judge’s Reasons

1. [19]

   After setting out some of the history of the matter and referring to the reasons of Quirk ADCJ, the primary judge said that it was “useful to look at the plaintiff’s working conditions that resulted in his medical condition and incapacity to perform his work duties”. His Honour listed twenty such matters.

2. [20]

   The first four concerned stress or trauma that the respondent suffered in the 1970s and early 1980s such as attending a fatal plane crash at Cooma, where the pilot, whom the respondent knew, and two passengers were killed in gruesome circumstances; and a period in the early 1980s when he was subjected to “five fatals in five days” which were highly stressful and resulted in his suffering nightmares, flashbacks, drinking heavily, smoking, and becoming dependent on codeine.

3. [21]

   Matters five to 18 related to stress the plaintiff suffered following his making of complaints against two former police officers who were on the board of the Lake Macquarie Police Citizens Youth Club, where he was stationed to work. The directors in question were a Mr Richard Smith, a former police superintendent, and Mr Richard Face, a local Member of Parliament, and a Minister. The primary judge found that the respondent became the subject of persecution, harassment and false complaints. The persecution, harassment and false complaints were described by the primary judge in some detail to which it is unnecessary to refer. Mr Smith wrote to the Ombudsman complaining that the investigations into the Lake Macquarie Police Citizens Youth Club were vexatious but the Ombudsman declined to investigate that complaint, nor a complaint made by Mr Face. Rather, the Ombudsman advised Messrs Smith and Face that there were reasons to investigate the Lake Macquarie PCYC and there was no prima facie evidence to support their allegations against the respondent.

4. [22]

   The matters identified by the primary judge included subsequent conduct by Mr Face, including the asking of questions in Parliament that the primary judge said could only be described as vindictive and part of a campaign conducted by Mr Face against the respondent and a highly critical and unfair article in the Newcastle Herald published on 19 November 1993 that Quirk ACDJ inferred was based on information provided to that newspaper from Mr Face and/or Mr Smith. (The article detailed complaints made by these two men but did not mention that the complaints had been investigated by a number of people including the Ombudsman and, as a result of the investigations, no action was taken against the respondent).

5. [23]

   Also included in the twenty matters was that the respondent had been harassed after his resignation by being asked to attend the Charlestown Police Station to answer an allegation made by Mr Face that the respondent had falsely claimed to be a Justice of the Peace, whereas he was in fact a Justice of the Peace; and extensive delays in processing the respondent’s application for a security licence which it could be inferred arose from a complaint made by Mr Face to the then Minister for Police and Emergency Services concerning the application.

6. [24]

   The primary judge then dealt with the evidence as to the effect of these matters on the respondent’s mental condition that led up to his making a snap decision on 14 December 1993 to resign. The primary judge recorded that, after he resigned, the respondent felt relieved but depressed. He felt he could not work for about eight months. Because of his changed financial circumstances he sold the family home. After resigning he continued to suffer from anxiety, feelings of shame and depression. His attempts to start work before August 1994 were unsuccessful. After 1994 he undertook some taxi driving. He put on weight and in 2003 he weighed 155kg. The primary judge found that, in 2007, the respondent stopped driving taxis and employed drivers. In 2010 he sold his taxi plates and commenced work driving special needs children. He did not think he was entitled to a pension because he had resigned and did not appreciate he could seek a pension until he saw a solicitor. The primary judge inferred that he saw a solicitor not long before the application was made on 21 August 2012.

7. [25]

   The primary judge then addressed the question of whether there were exceptional circumstances that warranted the backdating of the superannuation allowance. He was satisfied that 16 of the 20 circumstances that he had previously identified were such exceptional circumstances. His Honour said:

8. [26]

   Exceptional circumstances being established to his satisfaction, the primary judge then addressed the question as to whether the discretion to backdate the time from when the superannuation allowance should be paid should be exercised and, if so, to what earlier date. His Honour determined that the period for which the allowance should be paid should be backdated by 10 years (approximately half the backdating period sought).

9. [27]

   None of the “exceptional circumstances” identified by the primary judge as justifying the determination of an earlier date were matters which might explain the respondent’s delay in filing his application.

Grounds of appeal

1. [28]

   The appellant’s grounds of appeal are as follows:

2. [29]

   In its written submissions the appellant said:

3. [30]

   On the face of the notice of appeal, when read with the appellant’s written submissions, the only point of law raised by the appeal is whether, in applying s 9A(4)(b) of the Act, the appellant (or a judge of the District Court standing in its place) can only have regard to matters which might explain the claimant’s delay in filing an application. In raising a point of law the appellant must contend, and it does contend, that the circumstances identified by the judge were irrelevant, in the sense that they were considerations the primary judge was not entitled to take into account as exceptional circumstances because they did not explain the delay in filing the application: that is, they were forbidden.

Consideration

1. [31]

   A judge, in exercising jurisdiction under s 21 of the Act, is placed in the position of the decision-maker (doubts about that question that arise from Swift v SAS Trustee Corporation [2010] NSWCA 182 were resolved by SAS Trustee Corporation v Arthur Cox). There is no doubt that circumstances explaining, or relevant to, the delay in making the application would be relevant and might be decisive. The issue raised by at least ground 1, and in my view by both grounds of appeal, is whether those are the only considerations the appellant or, on an application to the District Court, the District Court can consider.

2. [32]

   To answer this question, the legislative history of s 9A(4) is relevant.

3. [33]

   Section 9A(4) was amended in 2006 by the Superannuation Legislation Amendment Act 2006 (NSW) sch 1, item 1.2 [4]. Prior to that amendment s 9A(4) provided:

4. [34]

   This was a wider discretion than that now provided for by s 9A(4). There were no constraining circumstances except those which would arise from the context and purpose of the Act considered as a whole. Under the former provision there would be no reason why the STC could not have considered matters such as the circumstances which gave rise to the former member’s incapacity, or his or her financial circumstances, in deciding the date from which an allowance should be payable.

5. [35]

   The 2006 amendments created a default position that unless the STC exercised the discretion provided by s 9A(4)(b), the allowance would be payable from the date of the application (s 9A(4)(a)). The amendment removed the potential for the STC to determine that the allowance might be payable only after the date of the application, but provided that the STC could only determine that the allowance would be payable at a date earlier than the date of the application if it were satisfied that there were exceptional circumstances. For a circumstance to be exceptional, it must not be a circumstance regularly, routinely or normally encountered, but it does not have to be unique, unprecedented or very rare (R v Kelly [2000] QB 198 at 208; Baker v The Queen (2004) 223 CLR 513; [2004] HCA 45 at [173]-[174] per Callinan J). It is the infrequency of the occurrence of the circumstance that renders it exceptional.

6. [36]

   Having regard to the legislative history of s 9A(4) this suggests no narrowing of the range of circumstances that the appellant could consider in determining whether an application should be backdated from those that could be considered before the 2006 amendments, except by the requirement that the STC be satisfied that the circumstances meriting the backdating of the allowance be exceptional. We were not referred to any extrinsic material to suggest a legislative intention that the range of circumstances to be considered was to be narrowed, otherwise than by reason of the need for such circumstances to be considered to be exceptional.

7. [37]

   The appellant did not challenge the judge’s finding that the sixteen matters he identified were exceptional circumstances. [3] Rather the appellant contended that they were irrelevant circumstances.

8. [38]

   There is nothing in the text of the legislation that warrants the restricted meaning of “exceptional circumstances” for which the appellant contends. The appellant submits that its proposed construction is preferable having regard to the context and purpose of the legislation.

9. [39]

   The authority of STC, or the District Court standing in its place, under s 9A(4)(b) does not depend on whether, as a matter of objective fact, exceptional circumstances exist, but whether it is satisfied that exceptional circumstances exist that merit its determining that the allowance be payable from a date earlier than the date of lodgement of the application.

10. [40]

    In Baker v The Queen, Gleeson CJ said (at [13]) that:

11. [41]

    The same can be said of the administrative discretion conferred by s 9A(4)(b) that the STC (or the District Court standing in its place) be satisfied that there are exceptional circumstances that merit the backdating of the allowance. For example, I see no reason why the STC could not consider the fact that a former member was injured in circumstances of exceptional heroism to be an exceptional circumstance that warranted backdating an allowance.

12. [42]

    For these reasons I would reject the grounds of appeal.

13. [43]

    In oral submissions, counsel for the appellant contended that ground 2 (quoted above at [28]) was not merely a corollary of ground 1 (as the appellant’s written submissions indicated) but was a free-standing ground which challenged the primary judge’s exercise of his discretion to backdate the allowance by ten years having found that exceptional circumstances existed that merited a backdating.

14. [44]

    I do not read the grounds of appeal that way. If they are to be so read, the grounds conspicuously fail to identify the point of law that the appellant would seek to raise as the subject matter of the appeal.

15. [45]

    Nor did the appellant’s written submissions identify any such error.

16. [46]

    The primary judge’s reasons on the exercise of his discretion were:

17. [47]

    The appellant challenged the adequacy of the findings at paras numbered 3 and 4 above. The appellant’s evidence was that he took up work as a taxi driver, that he purchased his taxi plates in 1996 and that his taxi business evolved into a business in which he had a contract for transportation of special needs children that was profitable. This was a challenge to findings of fact and raises no point of law.

18. [48]

    The appellant submitted that the primary judge’s reasons provided no logical basis for backdating the allowance by ten years to 2002, as his Honour’s reasons would only support a backdating for the period it took the respondent to re-establish himself in his taxi or later business, which was much less than ten years.

19. [49]

    The submission is flawed for three principal reasons.

20. [50]

    First, the submission does not identify a point of law. The appellant submitted that the primary judge’s decision revealed a House v The King (1936) 55 CLR 499; [1936] HCA 40 error. If that be so, it is not necessarily on that account an error of law.

21. [51]

    Secondly, on the basis of the determination of Quirk ADCJ, had the respondent applied for the allowance he would have been entitled to it from the time of his resignation. The fact that he later earned other income, even if it were substantial, would not have disentitled him from receiving the allowance. Therefore, the time from which he earned substantial income after his resignation would not be expected to be determinative of whether his allowance should or should not be backdated.

22. [52]

    Thirdly, some of the matters listed by the primary judge were reasons for not backdating the allowance (reasons 7, 8 and 9), three were a reason for doing so (reasons 3, 4 and 6) and three were neutral (reasons 1, 2 and 5). Weighing up all of those matters the judge determined that the respondent’s allowance should be backdated by ten years, which was about half of the period he sought. The primary judge did not assess the period of backdating by reference to the period the respondent was out of employment. Nor was he required to do so. The question is not whether the primary judge’s determination would be reviewable on an appeal by way of rehearing, but whether he erred in point of law (if the appellant should be permitted to rely on the asserted error).

23. [53]

    In my view, the appellant has not demonstrated any such error.

24. [54]

    For these reasons I propose that the appeal be dismissed with costs.

25. [55]

    GRIFFITHS AJA: I agree with the orders proposed by White JA and with his Honour’s reasons.