Burton v State Superannuation Investment & Management Corporation [1997] NSWCC 9; (1997) 14 NSWCCR 344 (26 February 1997)

[1997] NSWCC 9; (1997) 14 NSWCCR 344

BURTON v. STATE SUPERANNUATION INVESTMENT & MANAGEMENT CORPORATION

Compensation Court of New South Wales: Neilson J

26 FEBRUARY 1997

POLICE - APPEAL TO COURT - GRATUITY ASSESSMENT UNDER RELEVANT LEGISLATION - INTEREST ON GRATUITY AMOUNT DETERMINED BY COURT - PAYABLE FROM THE DATE OF INJURY, NOT DATE OF CLAIM - POLICE REGULATION (SUPERANNUATION) ACT 1906, SECTIONS 12D AND 18C

C.G. MURTOUGH, for the applicant

T.M. OWER, for the respondent

EX TEMPORE

NEILSON J: This is an appeal under the Police Regulation (Superannuation) Act 1906 from a decision of the SAS Trustee Corporation concerning gratuities paid to the appellant, Detective Senior Constable John Patrick Burton, pursuant to section 12D of that statute.

Section 12D permits the current respondent to pay to a member of the police force who is hurt on duty, or to a former member of the police force who was hurt on duty, an amount not exceeding the amount that would have been payable to the member or former member under Divisions 3, 4 and 5 of Part 3 of the Workers Compensation Act 1987 if the member were or the former member had been a worker for the purposes of the Workers Compensation Act 1987.

Detective Senior Constable Burton claimed a gratuity equivalent to what he would have been entitled to under section 66 of the Workers Compensation Act 1987 if he were a worker.

On 29 November 1995 the respondent determined that the appellant had a 15 per cent permanent impairment of his back, and on 29 January 1997 determined that he had no loss of efficient use of either of his legs at or above the knee. It is from those two determinations that the current appeal is brought.

The appellant was injured in a motor vehicle accident in the course of his duty on 18 November 1992. Of course, there is no dispute about the occurrence or compensability of that injury. The appellant's injury was essentially to his low back.

[HIS HONOUR CONSIDERED THE MEDICAL EVIDENCE AND CONCLUDED THAT THE APPLICANT HAD IN HIS BACK AT THE TIME OF THE INJURY SOME AGE-RELATED DEGENERATIVE CHANGES. HIS HONOUR FOUND THAT THERE WAS 20 PER CENT PERMANENT IMPAIRMENT OF THE APPELLANT'S BACK AND 5 PER CENT LOSS OF THE USE OF EACH OF HIS LEGS AT OR ABOVE THE KNEE, BOTH OF WHICH HE REDUCED BY 10 PER CENT PURSUANT TO SECTION 68A(6). HE CONTINUED - ED]

Of course my determination on this appeal does entitle the appellant to apply for a gratuity under section 67. My only role under the Police Regulation (Superannuation) Act 1906 is to hear appeals from decisions of the respondent. The respondent has not considered what the appellant's entitlement is under section 67. However, the respondent has asked me, through its counsel, to make a determination of the appellant's section 67 entitlement, no doubt because it is more cost effective than for me to remit the matter back to the respondent for it to make another determination and for there to be another appeal.

As I have said, the appellant's symptoms are intermittent at the current time. He had two long periods of incapacity for work, one for six months following the injury, another period of five months between October 1994 and February 1995. I will accept that for the pain to have kept the appellant off work during those periods it was quite severe. However, he has been left with intermittent symptoms from his disc rupture.

It appears that what is happening is that from time to time the ruptured discal material impinges on the theca and causes symptoms, but, when the MRI scan was taken, the appellant may well have been free of symptoms but the activities of normal living will of course provoke pain from time to time.

[HIS HONOUR THEN MADE AN APPROPRIATE DETERMINATION PURSUANT TO SECTION 67 OF THE WORKERS COMPENSATION ACT AND CONTINUED - ED]

The appellant also claims interest. As I have already indicated, his entitlement to benefits under section 66 and 67 of the Workers Compensation Act 1987 depends on the section 12D of the Police Regulation (Superannuation) Act 1906. Whilst that provision purports to give the respondent a discretion to pay "a gratuity", it has been the practice, and it has not been submitted otherwise, that the respondent must pay the money and that it is in fact not a gratuity even though it is so called.

Section 18C of the same statute makes this provision:

"The [respondent] may, when paying a benefit under this Act, pay interest on the benefit at such rates, for such periods, and in such circumstances, as in its absolute discretion it thinks appropriate."

When I inquired of the learned counsel for the respondent whether I had power to review this "absolute discretion" of the respondent, I was advised that I had such power. It appears to me that, just as section 12D gives the respondent a discretion by using the word "may" and refers to the benefit as a "gratuity", it is in fact an entitlement which the respondent must pay.

Likewise, under section 18C, whilst the respondent is supposed to have "an absolute discretion" to do whatever it likes, it is in fact an entitlement to a beneficiary under the Act to the benefit which is reviewable by this Court pursuant to section 21 of that statute.

The submission put to me by the respondent is that interest should only be awarded in the same circumstances as under the Workers Compensation Act 1987. In particular, the respondent submits that I must apply the provisions of Schedule 6, Part 11, clause 1 to the Workers Compensation Act 1987 and only order the payment of interest from when the claim was "duly made" as it is used in subclause (a) of that provision. That provision, of course, came into effect on 1 January 1996. However, before that date interest was payable under section 19 of the Compensation Court Act 1984.

Under section 19 of the Compensation Court Act, the practice as sanctioned by old authority was to award interest from the date of injury, not from the date of claim. The amendments made to the Workers Compensation Act and the Compensation Court Act by the WorkCover Legislation Amendment Act 1995 (the Amendment Act) changed the law as regards workers retrospectively. But, of course, the law turns its face against retrospective operation and would only make a retrospective provision if it were expressly or implicitly mandated by statute.

I had reason to discuss the amendments regarding interest in OGILVIE v. JL SMITH ENGINEERING PTY LTD [1996] NSWCC 1; (1996) 12 NSWCCR 623 in an EX TEMPORE decision given at Ballina on 2 February 1996. I pointed out that the entitlement to interest for a person who commenced proceedings before the commencement of the new provisions arose under the Compensation Court Act 1994 and the continuing effect of section 19, which was repealed, pursuant to section 30 of Interpretation Act 1987.

I then went on to point out that the Amendment Act made certain transitional provisions in Schedule 6, Part 11, clause 1, and that the principle of interpretation that GENERALIA SPECIALIBUS NON DEROGANT ought to be applied so that the general transitional provision about the continuing effect of section 19 was modified specifically by the special provisions in Schedule 6, Part 11, clause 1.

My reasoning found favour with the Court of Appeal which held in a similar fashion in ST VINCENT'S PRIVATE HOSPITAL v. MAHER (1996) 13 NSWCCR 118.

In the current case, the appellant is entitled to interest pursuant to section 18C of the Police Regulation (Superannuation) Act 1906. There may be a concurrent right under the Compensation Court Act 1984, section 19, now repealed, in its continuing operation. However, the specific retrospective amendments made to awarding interest by the WorkCover Legislation Amendment Act 1995 affect only the entitlement of workers under that Act to interest on benefits under that Act.

Without specific retrospective legislation pursuant to the Police Regulation (Superannuation) Act 1906, in my view, the appellant is entitled to interest in accordance with normal principles, that is, from the date of injury, and not interest from the date of claim.

For me to accede to the submission of the respondent would be to apply retrospective legislation which on its face does not apply to the appellant. To do so would, in my view, be contrary to legal principle and is not mandated by any Act of Parliament.

I have inquired of counsel for each party whether any further reason for judgment is required and I am told that none is so required.

For those reasons I set aside the determinations of the SAS Trustee Corporation of 29 November 1995 and 29 January 1997.

I order the SAS Trustee Corporation to pay to the appellant pursuant to section 12D of Police Regulation (Superannuation) Act 1906 the following gratuities:

[HIS HONOUR THEN MADE ORDERS NOT CALLING FOR REPORT - ED]

Solicitors for the applicant: TAYLOR & SCOTT

Solicitors for the respondent: S.W. SPENCER