Miles v SAS Trustee Corporation [2011] NSWIRComm 15 (3 March 2011)

Last Updated: 15 March 2011

Industrial Relations Commission New South Wales

Case Title:	Miles v SAS Trustee Corporation
Medium Neutral Citation:	[2011] NSWIRComm 15
Hearing Date(s):	1 November 2010
Decision Date:	03 March 2011
Jurisdiction:
Before:	Boland P at 1, Walton VP at 23, Kavanagh J at 24
Decision:	1. Leave to appeal is granted. 2. The appeal is dismissed.
Catchwords:	SUPERANNUATION - Appeal - Appellant medically discharged from the Police Force in 2003 - Found by trustee of Police Superannuation Fund to be incapable, from a specified infirmities of body, of personally exercising the functions of a police officer - Appellant received superannuation allowance - application to trustee in 2009 to amend the certificate issued in 2003 to add Post Traumatic Stress Disorder ("PTSD") to the infirmities of body that constituted the original basis of the certificate - Application to amend rejected by trustee - Trustee took the view there was no "dispute" because the appellant could not have been "aggrieved" by the original decision in 2003 whereby the trustee had certified all the medical conditions claimed by the appellant at the time - Trustee submitted as there had been no determination of a dispute, no appeal lies to the Industrial Court - Held at first instance trustee was correct in view taken - On appeal, first instance decision upheld by majority - Leave to appeal granted - Appeal dismissed APPEAL - Superannuation - Police officer hurt on duty - Appellant medically discharged from the Police Force in 2003 - Found by trustee of Police Superannuation Fund to be incapable, from a specified infirmities of body, of personally exercising the functions of a police officer - Appellant received superannuation allowance - application to trustee in 2009 to amend the certificate issued in 2003 to add Post Traumatic Stress Disorder ("PTSD") to the infirmities of body that constituted the original basis of the certificate - Application to amend rejected by trustee - Trustee took the view there was no "dispute" because the appellant could not have been "aggrieved" by the original decision in 2003 whereby the trustee had certified all the medical conditions claimed by the appellant at the time - Trustee submitted as there had been no determination of a dispute, no appeal lies to the Industrial Court - Held at first instance trustee was correct in view taken - On appeal, first instance decision upheld by majority - Leave to appeal granted - Appeal dismissed
Legislation Cited:	Industrial Relations Act 1996 (NSW) Police Act 1990 (NSW) s 14(1) Police Regulation (Superannuation) Act 1906 (NSW) s 9A, s 10, s 10B, s 23E Superannuation Administration Act 1996 (NSW) s 51, s 67, s 88
Cases Cited:	Baker v Local Government Superannuation Scheme [2007] NSWSC 1173 Day v Commissioner of Police [2009] NSWCCA 222; (2009) 187 IR 338 Gilberg v Stevedoring Employees Retirement Fund Pty Ltd [2008] NSWSC 1318 Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409; (2005) 150 IR 263 Karger v Paul [1984] VicRp 13; [1984] VR 161 Miles v SAS Trustee Corporation [2010] NSWIRComm 69 Murray v Commissioner of Police [2004] NSWCA 365; (2005) 2 DDCR 31 Saad v Commissioner of Police (1995) 12 NSWCCR 70 SAS Trustee Corporation v Daykin [2002] NSWIRComm 124; (2002) 115 IR 172 Swift v SAS Trustee Corp [2010] NSWCA 182 Tonkin v Western Mining Corporation Limited (1998) 10 ANZ Insurance Cases 61-397 Woodlands v SAS Trustee Corporation [2001] NSWIRComm 232
Texts Cited:
Category:	Principal judgment
Parties:	Peter Miles (Appellant) SAS Trustee Corporation (Respondent)
Representation
- Counsel:	T Edwards of counsel (Appellant) T Ower of counsel (Respondent)
- Solicitors:	Harris Wheeler Lawyers (Appellant) SAS Trustee Corporation (Respondent)
File number(s):	IRC 528 of 2010
Decision Under Appeal
- Court / Tribunal:	Industrial Relations Commission
- Before:	Staff J
- Date of Decision:	07 June 2010
- Citation:	Miles v SAS Trustee Corporation [2010] NSWIRComm 69
- Court File Number(s)	IRC 1557 of 2009
Publication Restriction:

Judgment OF THE FULL BENCH

BOLAND J

1

I have had the opportunity of reading the draft judgment prepared by Kavanagh J. Her Honour has helpfully set out the background to the appeal and analysed the decision at first instance. Accordingly, there is no need to repeat what her Honour has done in those respects except to set out, in brief terms the factual context, in which I have made my findings.

2	In reaching those findings I find myself disagreeing with her Honour's conclusion that Staff J erred in upholding the respondent's case at first instance and with the order her Honour proposes upholding the appeal. In my opinion, Staff J was correct in dismissing the appeal. My reasons follow.

3

Briefly, the appellant was medically discharged from the Police Force on 5 September 2003. He was certified by the SAS Trustee Corporation ("STC") which is the trustee for the Police Superannuation Fund, as being incapable, from a specified infirmity of body, of personally exercising the functions of a police officer: see s 10B(1) of the Police Regulation (Superannuation) Act 1906 ("PRS Act"). This certification is an important first step in the process laid down in the PRS Act for an officer "hurt on duty" to be eligible to receive a superannuation allowance. The infirmities certified by STC are detailed in the judgment of Kavanagh J, but they were limited to physical and not psychological infirmities. Importantly, Mr Miles made no claim in 2003 that he was incapable of performing the functions of a police officer because of an infirmity of the mind. His claim was limited to the physical infirmities reflected in the certificate issued by STC.

4

The appellant did receive a superannuation allowance, which was later increased in 2004 and 2006, the details of which are set out by Kavanagh J. Mr Miles then made application to STC in 2009 to amend the certificate issued in 2003 under s 10B(1) of the PRS Act to add an infirmity of mind, namely, Post Traumatic Stress Disorder ("PTSD"), to the infirmities of body that constituted the original basis of the certificate. That such applications may be made would seem to be implicit in the fact that under s 10(1D) of the PRS Act, STC may "make a determination at any time" of an additional amount of a superannuation allowance under s 10 and may vary any such determination at any time.

5

STC subsequently advised Mr Miles by letter dated 21 August 2009 that his application to amend was rejected, as STC had taken the view that there was no "dispute" because the appellant could not have been "aggrieved" by the original decision in 2003 whereby STC had certified all the medical conditions claimed by the appellant at the time. Therefore, if there had been no determination of a dispute, no appeal lies to the Industrial Court

6	For these propositions the STC appears to rely mainly on s 23E of the PRS Act and ss 67(1) and 88(1) of the Superannuation Administration Act 1906 ("SA Act"). These provisions are in the following terms:

23E Disputes

(1) If STC makes a decision under this Act in relation to a contributor or other person, STC must give to the contributor or other person notice in writing of:

(a) the decision, and

(b) the right to dispute the decision, and

(c) the time within which notice of a dispute must be served on STC.

(2) A contributor or other person who is aggrieved by a decision made by STC has a right to dispute that decision and to have the dispute determined under the Superannuation Administration Act 1996.

(3) Notice of the dispute must be served on STC within 2 years after the aggrieved person is notified in writing of the right to dispute that decision.

(4) This section applies to a decision made before, on or after the commencement of this section, except a decision in respect of which a dispute has been notified to STC before the commencement of this section.

(5) This section does not apply to a decision to which section 21 applies.

67 Determination of disputes

(1) A dispute under this or any other Act concerning an STC scheme is to be determined by STC or an STC disputes committee, except as otherwise provided by the regulations.

...

Note. The rights of a scheme member or other person to lodge a dispute with STC in relation to an STC scheme are set out in the Police Regulation (Superannuation) Act 1906 , section 23E; the State Authorities Non-contributory Superannuation Act 1987 , section 33B; the State Authorities Superannuation Act 1987 , section 54B and the Superannuation Act 1916 , section 85A.

88 Appeals

(1) A person aggrieved by a determination of STC or an STC disputes committee under section 67 (relating to determination of disputes) may appeal against the determination to the Industrial Relations Commission in Court Session (the Commission ).

...

7

The key to the appeal lies in the interconnection between ss 23E, 67 and 88. As it may be seen, s 23E(2) provides that a contributor or other person who is "aggrieved" by a "decision" made by STC has a right to dispute that decision and to have the dispute determined under the SA Act. Section 67 of the SA Act relevantly provides that a "dispute" arising under the PRS Act concerning an STC scheme, is to be determined by STC or an STC disputes committee, except as otherwise provided by the regulations. Nothing in the regulations bears on the issue.

8	Section 88 of the SA Act provides that a person aggrieved by a determination of STC or an STC disputes committee under s 67 may appeal against the determination to the Industrial Court.

9

Thus, the scheme in relation to the resolution of disputes arising under either the PRS Act or the SA Act is that a person in Mr Miles' position who may be "aggrieved" by a "decision" made by STC has a right to dispute that decision and to have the "dispute" determined under s 67 of the SA Act. The dispute is to be determined by STC or an STC disputes committee. In the event that a person is "aggrieved" by a "determination" of STC or the disputes committee, the person may appeal to the Industrial Court.

10

In the present appeal, the appellant made application to amend the original s 10B(1) certificate. STC made a decision, set out in a letter dated 21 August 2009, rejecting the application "on the basis that there is no dispute because the Applicant cannot be aggrieved by the original decision that certified all medical conditions he claimed." The letter specifically stated that STC was not "obliged to determine a dispute in this matter".

11

The first question then is whether it may be said Mr Miles was aggrieved by a decision made by STC. I agree with Staff J that the appellant could not have been aggrieved by the decision to issue the certificate in 2003; Mr Miles received precisely what he asked for. Mr Miles was specifically asked whether the conditions claimed were complete. He answered in the affirmative. He was specifically asked whether he was claiming idiopathic epilepsy. He answered in the negative. All of his originally claimed conditions were certified under s 10B(1) of the PRS Act. What is more, Mr Miles relied upon the terms of the s 10B(1) certificate in his claim before the District Court in 2005-2006 to increase his pension to 85 per cent.

12

What Mr Miles is aggrieved about, in my opinion, is the decision conveyed in the letter of 21 August 2009 rejecting the application to amend the original certificate. Whilst that grievance establishes the necessary prerequisite for a dispute to be dealt with in accordance with s 67 of the SA Act, the fact is STC has yet to make a determination in respect of a disputed issue, namely, rejection of the amendment of the 2003 certificate.

13

In other words, the sequence was that in 2003 Mr Miles was certified under s 10B(1) as being incapable of personally exercising the functions of a police officer. For the reasons given, Mr Miles could not have been aggrieved by STC's decision in 2003 to issue the certificate and, therefore, no dispute could have existed about that decision. Mr Miles made application in 2009 to amend the 2003 certificate to add an infirmity. STC rejected the application on the basis that there was no dispute because Mr Miles, having been successful in his application for a certificate under s 10B(1), could not have been aggrieved by the decision to issue the certificate. The decision rejecting the amendment was not a determination under s 67 of the SA Act because it was not in relation to any dispute. The dispute only arose once there was a decision rejecting the amendment. STC is yet to make a determination in relation to that dispute. The appeal to this Court against the decision of the respondent to reject the claimed amendment to the 2003 certificate is premature.

14

The appellant submitted that by its actions the respondent did not make a determination, as it was required to do under the Act. This was a rejection, it was submitted, which failed to allow the appellant due consideration by STC in its fiduciary role, exemplified by the provisions in s 51 of the SA Act. It, therefore, became a determination to reject his application.

15	The submission fails to address the real issue: whether in rejecting the claimed amendment, STC was making a determination in respect of a dispute in accordance with s 67. There was no dispute and, therefore, there was no basis upon which STC could exercise a power to determine a dispute.

16

I agree with the respondent's submissions and the findings by Staff J that the principles relating to the obligations of trustees relied upon by the appellant set out in such cases as Tonkin v Western Mining Corporation Ltd [1998] 10 ANZ Insurance Cases 61-397 and Gilberg v Stevedoring Employees Retirement Fund Pty Ltd [2008] NSWSC 1318 are of little assistance in the present matter. STC is not a trustee in the traditional sense (see Swift v SAS Trustee Corporation [2010] NSWCA 182 at [85] per Young JA). It, nevertheless, carries some fiduciary duties (see for example, s 51(1)(c) of the SA Act, which requires STC to ensure that its functions relating to the STC schemes are exercised in the best interests of persons entitled to receive benefits under the STC schemes). However, similar to the approach taken by the Court of Appeal in Swift, I consider the general direction to STC in the SA Act to exercise its functions in accordance with the obligations of a trustee does not fetter the specific requirements under the relevant statutes dealing with how disputes regarding the Police Superannuation Fund are to be processed.

17

In Swift , the appellant police officer sustained a work-related injury prior to resignation from the Police Force in 1981. In 2004 he made application to STC for a superannuation allowance, which was granted in 2007 but made payable only from the date of the application. Section 9A(4) of the PRS Act provided that where an annual superannuation allowance is granted under section 10 to a former member of the police force who resigned or retired, the allowance is payable as from the day determined by STC for that purpose. The appellant appealed to the District Court, which upheld STC's decision to pay the allowance from the date of application and not from the resignation date. The appellant appealed to the Court of Appeal where it was claimed the District Court failed to take into account the best interests of the appellant as beneficiary of a statutory trust or to consider the absence of prejudice to other beneficiaries. It was further claimed the District Court penalised the appellant for the delay in making the application and failed to consider the real merits and justice of the case and failed to exercise its discretion in accordance with the purposes the discretion was conferred.

18

The Court of Appeal dismissed the appeal. The Court rejected the submissions that the District Court failed to take into account the best interests of the appellant or to consider the absence of prejudice to other beneficiaries. Relevantly, it was held (by Basten JA and Young JA, Allsop P agreeing) that it would be inconsistent with the language of the general discretion in s 9A(4) of the PRS Act to hold that because of a trustee's duty to act in "the best interests of" the appellant as a beneficiary of a statutory trust, the STC had a duty to exercise that discretion favourably to the applicant in backdating the pension. The Court held that the specific form of s 9A(4) was not to be fettered by some general direction to the STC (such as those contained in s 51 of the SA Act) to exercise its functions in accordance with the obligations of a trustee.

19

The proposition derived by the appellant from Tonkin that STC had a duty only to act in accordance with the trust and that in accordance with s 51 of the SA Act it must exercise its functions in "the best interests of persons entitled to receive benefits under the STC schemes", does not amount to a licence to ignore the statutory requirements as to what constitutes a dispute and the process by which it is to be resolved.

20

It being the case that no determination has been made under s 67, the appellant is now entitled to apply to have his dispute in relation to STC's rejection of the amendment to the original certificate dealt with by STC or the disputes committee. If the determination is adverse to Mr Miles, he may appeal to this Court. Until a determination is made, however, under s 67 of the SA Act in relation to a dispute, no appeal lies.

21	The relevant decision by STC was made on 21 August 2009. Although STC did not comply with s 23E(1)(b) and (c) in conveying its decision to Mr Miles, it may be taken that Mr Miles has two years from the date of the decision to serve his notice of dispute on STC: s 23E(3).

22	I would grant leave to appeal and dismiss the appeal.

WALTON J

23	I have had the advantage of reading the judgments of Boland J, President, and Kavanagh J. I agree with the judgment of Boland J and the orders proposed therein.

KAVANAGH J

24

On 1 October 2009, Peter Miles (the appellant), a former police officer who had been medically retired "Hurt on Duty" (with his medical conditions identified in a s 10B(1) Certificate under the Police Regulation (Superannuation) Act 1906 ("PRS Act")), filed for leave to appeal and appeal from a judgment of Staff J of 7 June 2010 ( Miles v SAS Trustee Corporation [2010] NSWIRComm 69). Staff J dismissed Mr Miles' appeal filed pursuant to s 88 of the Superannuation Administration Act 1996 ("SA Act") against a decision of the SAS Trustee Corporation ("STC"), which is the Trustee for the Police Superannuation Fund.

25	The decision of Staff J upheld a communication from STC made on 21 August 2009, which said:

The application for amendment of the s 10B(1) certificate is therefore rejected on the basis that there is no dispute because the Applicant cannot be aggrieved by the original decision that certified all of the medical conditions he claimed.

The communication was on the letterhead of "State Super, SAS Trustee Corporation" and was signed by STC's Solicitor, Manager, Disputes and Appeals.

History

26

In order to consider the appeal it is necessary to shortly recite the appellant's agreed work and medical history. The appellant was a Police Constable from 5 May 1975 until his discharge on 5 September 2003 as being "Hurt on Duty". Accordingly, he became entitled to the benefits prescribed by the PRS Act. To obtain those benefits he had to obtain, under s 10B(1) of the PRS Act, a certificate identifying the injuries which led to his "Hurt on Duty" incapacity.

27

On 15 July 2002, the appellant made application for a s 10B(1) certificate because of the following related injuries: lumber strain/shoulder injury/right knee; lower back strain; dislocated neck/back; lower back/neck; and back. The appellant also declared he suffered from a non-work related condition, "Idiopathic Epilepsy" and he referred to this condition in his application for discharge saying:

All injuries claimed have been accepted as work related except for Idiopathic Epilepsy. This condition was classed as not work related in 1984 and not related to my work environment.

28

Pursuant to s 10B(1) of the PRS Act, on or about 15 July 2002, STC issued to the appellant a s 10B(1) Certificate. STC certified that as a result of the following infirmities the appellant was hurt on duty and incapable of exercising his functions as a Police Officer: cervical spine - symptomatic degenerative changes; lumbar spine - symptomatic degenerative changes; left shoulder - recurrent dislocation; right knee - symptomatic chondromalacia.

29	As authorised by the Commissioner of Police under s 10B(3) of the PRS Act, on or about 4 September 2003, the appellant became eligible for superannuation in the form of a pension granted to a former officer who had been Hurt on Duty.

30

Having received his superannuation entitlement at a rate of 72.75 percent, the appellant in June 2004 made application for an increase of his pension to 85 percent (referred to under the Act as a variation). In September 2004, STC granted an increase to 81 percent backdated to September 2003. On 18 March 2005, the appellant filed an appeal in the District Court seeking 85 percent. In February 2006, Neilson DCJ allowed the appeal and increased the pension to 82.55 percent. The maximum pension is 100 percent of the officer's salary if totally incapacitated.

31

On 3 July 2008, the appellant made a further application (relying incorrectly on s 10B(2)). He required STC to consider an additional infirmity of Post Traumatic Stress Disorder ("PTSD"). In making the application, the appellant provided to STC evidence in support of his claimed additional infirmity by way of three medical reports from a consultant physician in psychiatry, one psychologist's report and four lay persons' statements. The medical reports provided for a retrospective diagnosis of the condition PTSD.

32	The appellant's application regarding PTSD was rejected by STC on 29 October 2008. The application was refused in correspondence under the letterhead of "State Super, SAS Trustee Corporation" not because of the reference to the incorrect section of the Act but for the following reasons:

I refer to your client's dispute over the infirmity specified in his certificate of incapacity.

Mr Miles applied for a certificate of incapacity on the grounds of injury to his neck, back, left shoulder and right knee. You are now requesting that the certificate be amended to include PTSD.

Mr Miles is only entitled to dispute PSAC's decision to the extent that it rejected the conditions he sought in his application. It is not open to him to seek to dispute the decision of PSAC in relation to medical conditions he did not seek as part of his certificate of incapacity at the time of PSAC's decision. In the circumstances, the dispute cannot be taken any further.

The letter was signed by Allen Coles, Senior Policy Officer. The reference to the PSAC is a reference to the Police Superannuation Advisory Committee which Committee under s 10B(3)(a) of the PRS Act (as amended) determined his particular injuries were caused by him being hurt-on-duty. The s 10B(1) certificate however to which the appellant asked for amendment was issued by the STC.

33	On 1 May 2009, the appellant made a new claim for an amendment to the s 10B(1) certificate issued in 2003 by adding PTSD.

34

The thrust of the appellant's relevant application, therefore, was that, at the time of his initial certificate on discharge, he was unaware he had a psychiatric condition. He stated he did not know of this condition because the symptoms of his "Idiopathic Epilepsy" (a condition he declared as non work related) camouflaged the symptoms of his PTSD. He only became aware of the condition after diagnosis by Dr Wade (the consultant physician in psychiatry) who provided three reports each dated 6 May 2008 all arising from one consultation on 31 March 2008. The appellant asked for a consideration by STC that the further infirmity, now identified, be added to his s 10B(1) certificate.

35	The letter to the appellant from STC of 21 August 2009 recited the appellant's superannuation history as above, then reasoned:

However, given the history of this matter, the question arises: is STC obliged to revisit the certificate issued in 2003?

Under s.67 Superannuation Administration Act, 1996 STC is obliged to determine a "dispute" under the scheme. On one view, there is no basis for a dispute to be determined. An examination of the circumstances of medical discharge clearly reveals that the Applicant:

a) was given every opportunity to claim all relevant infirmities;

b) obtained certification for all infirmities claimed;

c) did not claim any psychological condition whatsoever.

Further, he relied upon the existing certificate as a basis for his pension increase claim. Arguably, by his actions, he should be estopped from now claiming incapacity on a different basis.

The contrary view would be that the "dispute" is constituted by the fact that the Applicant now seeks a further infirmity and STC refuses to either consider that application or, alternatively, rejects the application for whatever reason. However, the context of the present matter is the Police Superannuation Scheme as governed by the Police Regulation Superannuation Act, 1906. Accordingly, the term should be construed consistently with its use elsewhere in the Act.

Section 23E, introduced into the Act by the Superannuation Administration Act, 2008, provides considerable guidance as to the meaning of "dispute".

Subsection (2) provides that:

"[A] contributor or other person who is aggrieved by a decision made by STC has a right to dispute that decision and to have the dispute determined under the Superannuation Administration Act 1996".

Therefore, the touchstone of whether there can be a dispute is whether the member can be aggrieved. Here, the Applicant is seeking an amendment of the client's original decision pursuant to s. 10B(1). In view of the fact that he was successful in obtaining certification for all conditions claimed, he cannot be "aggrieved" by that decision. Accordingly, I do not consider that STC is obliged to determine a dispute in this matter.

The application for amendment of the s. 10B(1) certificate is therefore rejected on the basis that there is no dispute because the Applicant cannot be aggrieved by the original decision that certified all the medical conditions he claimed.

The judgment at first instance

36	Staff J identified the issue for determination before his Honour at [22]:

The key issue for determination here is whether by its action of rejecting his application, the Trustee has made a determination, and accordingly the applicant is entitled to bring proceedings pursuant to s 88 of the Superannuation Administration Act .

His Honour reasoned at [31] - [37]:

[31] In my opinion, there is a relatively clear path to a decision on the issue raised in this appeal. In this case, it was common ground that the Trustee certified all of the infirmities claimed by the applicant as relevant to his medical discharge in 2003. The actual terms of the claim were clarified on two occasions before the certificate under s 10B was issued.

[32] Importantly, the Trustee was specifically directed by the applicant not to consider the condition of "idiopathic epilepsy". It is now claimed that the symptoms of this condition "effectively camouflaged the symptoms of PTSD" and that "any symptoms of a psychiatric type were effectively understood by the applicant as sequelae to his known epileptic condition." These arguments do not explain why, if the applicant believed he was incapacitated by such symptoms, he did not claim them as such, notwithstanding the lack of formal diagnosis. On the one hand, the applicant cannot claim an infirmity if he is unaware of it, and equally the Trustee cannot certify it if it is not claimed, as was the case here.

[33] There is much to be said for the proposition that in this case, once the procedures in s 10B have been followed and have produced a result, that is determinative of the infirmities. True it is that the applicant contends that there is medical evidence and the applicant's evidence that he, on a retrospective analysis suffered from PTSD at the time of his discharge, although such evidence has not been the subject of any assessment. The appeal was argued on the basis that the decision of the Trustee of 21 August 2009, which determined there was no dispute between the applicant and the Trustee, be set aside. The order sought by the applicant was that the application be remitted to the Trustee for proper consideration.

[34] Put simply, if a member has certified all of the infirmities that he or she relies upon, then I have some difficulty with how it can be said that a dispute can arise, and on what basis the member could contend that he or she was aggrieved by the decision. Furthermore, the Trustee took an additional step of enquiring of the applicant as to whether there was anything further that he wanted considered.

[35] Subsequently, the Trustee was asked to increase the applicant's pension on the determined infirmities, which occurred. The decision of the Trustee was appealed and a further increase was awarded. At no time during these steps was an infirmity of PTSD relied upon. The Trustee was of course obliged to consider the application for an increase in his pension based upon the conclusive nature of both the certificates pursuant to s 10B(1) and s 10B(3)(a). At no time during these steps was it suggested that the applicant was incapacitated by any medical condition, other than those already certified pursuant to s 10B(1).

[36] It follows that in these circumstances, the decision in Tonkin v Western Mining Corporation Limited can be distinguished. Essentially, the principles set out by Franklyn J were that a trustee:

... has a duty only to act in accordance with the trust. If it fails to perform the same, the court will compel it to do so or do so for it. It is not bound by any rules as to how it exercises a discretion conferred on it, save such as it is obliged to comply with by the terms of the Deed, provided always that it must act honestly and in good faith, on an informed view of whether or not to exercise its discretion, and exercise the power with due consideration for the purpose for which it was conferred and for no ulterior purpose.

[37] Having obtained all that he claimed up to 2 February 2006 (except for a finding of total incapacity) and having specifically relied upon the conclusive nature of the certificate to obtain his increase in pension, in my view, the applicant cannot now be validly "aggrieved" by the terms of the s 10B(1) certificate. To permit the applicant to be "aggrieved", in these circumstances, would be contrary to the statutory scheme and would add a further layer of complexity to an already complicated process, which, in my view, should be avoided: see observations of Wright P in Commissioner of Police v SAS Trustee Corporation (2002) 131 IR 243.

37	His Honour then dismissed the appeal.

The Appeal

38	The Grounds of Appeal pleaded are as follows:

1. His Honour erred in failing to properly apply the principles as outlined by Tonkin v Western mining Corporation Limited (1998) 10 ANZ Insurance Cases 61-397, Supreme Court of Western Australia, Full Court and Gilberg v Stevedoring Employees Retirement Fund Pty Limited [2008] NSWSC 1318.

2. His Honour erred in failing to address the issue for determination as outlined in paragraph 22.

3. His Honour misdirected himself as to the issue for determination in paragraphs 31-38 titled "consideration".

4. His Honour erred in interpreting that the correspondence from the Respondent dated 21 August 2009 was not a determination and thus to mean there was no dispute between the Applicant and the Respondent.

5. His Honour erred in finding that the Applicant was aggrieved by the terms of the s 10B(1) certificate.

6. His Honour erred in interpreting the duty of the Respondent to act in accordance with the trust.

7. His Honour erred in failing to properly consider the medical evidence relied upon by the Applicant.

Submissions

39

Counsel for the appellant conveniently summarised the grounds of appeal, submitting his Honour erred in his reasoning at [34] and [37] of the judgment by finding the appellant could not be "aggrieved" because his Certificate, as initially issued by STC, recognised all the infirmities he originally claimed and that to "permit" the applicant to be "aggrieved" would be against the statutory scheme. The appellant challenges this reasoning, contending the appellant was satisfied with the original s 10B Certificate but, given his receipt of new medical opinion, not known when the first certificate was issued nor when he made the application for variation to his pension, he now wished his condition of PTSD (not identified until 2008) to be assessed as to whether it was a Hurt on Duty condition. The application before STC, therefore, required consideration by the Trustee of the validity of his claim for an amendment to his s 10B Certificate to add a further infirmity. He contends the reasoning in the letter of 21 August 2009 reveals his application to amend the certificate had not been given consideration on its merits.

40

It is the appellant's contention Staff J, in adopting the reasoning of STC, failed to address the issue he properly identified at [22], that is, whether by the Trustee's action in rejecting Mr Miles' application, STC had made a determination on the issue raised and, therefore, the appellant was entitled to bring appeal proceedings pursuant to s 88 of the SA Act .

41

The appellant contended STC, in finding "no dispute", did not make a decision in accordance with its obligations. There was a "dispute" raised by the appellant and the Trustee should have given that dispute proper consideration. In adopting the Trustee's view of the facts, his Honour, therefore, fell into error.

42	The appellant asks for a remit of the issue, as to whether he could add another infirmity to his s 10B certificate, to the Trustee for consideration.

43	The respondent submitted:

The Trial Judge's articulation of the "key issue" at paragraph 22 of the judgment must be seen in context. His Honour clearly understood that the Respondent's letter dated 21 August 2009 constituted a rejection of the Appellant's claim on the basis that there could be no relevant "dispute" between the parties. It was obvious that it was that decision which the Appellant was seeking to overcome. At paragraphs 31 to 35 of the judgment, His Honour addressed this issue by reference to the specific agreed facts of the case. After doing so, His Honour essentially concluded that the Respondent was correct to reject the claim. In other words, in the circumstances of the present matter, the Appellant could not be relevantly "aggrieved" by the terms of the original s.10B(1) certificate.

44

The respondent contended the appellant's argument obfuscates the substance of his application at first instance. The appellant, it was acknowledged, was applying to have his s 10B(1) certificate amended to add an infirmity. The respondent concedes, in appropriate circumstances, the respondent's failure to add such an infirmity could constitute a dispute with which the appellant could be aggrieved. However, in the particular circumstances of the present matter, for the reasons given, there was no amendment allowed.

45

In the respondent's reasoning that there was no dispute, contained in the correspondence of 21 August 2009, reliance was placed on the fact the s 10B(1) Certificate issued in 2003 was also relied upon by the appellant in his 2006 application for a variation and the PTSD condition was not mentioned by the appellant in 2006.

46	Alternatively, the respondent argued if there was a dispute, it was considered and rejected in the circumstances by STC. The respondent contended on appeal the determination of STC should be upheld and the appeal dismissed.

Consideration

47

On a reading of the letter of 21 August 2009, it appears the Manager of the SAS appeals, acting as a delegate for the Trustee, made a decision without the application being referred to the Trustee or a Trustee Disputes Committee. However, both parties have in submissions accepted that the correspondence reflects a determination was made by the Trustee that there was no "dispute" raised by the application of the appellant.

48	STC, in making its determination which the letter reveals, sought no independent medical examination as to the asserted condition of PTSD.

Statutory scheme

49	It is necessary to consider the statutory scheme under which this appeal is brought. That consideration involves the interconnection between sections of the PRS Act, the SA Act, and, to a limited extent, the Industrial Relations Act 1996 ("IR Act").

50

The SA Act empowers the Trustee (STC) to administer the superannuation payments to (relevantly) members of the NSW Police Force. The Trustee makes its determinations in accordance with conditions recited in the PRS Act. Under the PRS Act, appeals from decisions of the Trustee come before the Industrial Court. Relevantly, the Court considers the appeal having regard to Part 4, Division 1 of the PRS Act.

The PRS Act

51	Part 4 - Benefits - Division - "Superannuation allowances and gratuities" is the relevant section:

Section 10 - Superannuation allowance where member hurt on duty

(1) In this section:

attributed salary of office means:

(a)...

(b)...

disabled member of the police force means:

(a) a member of the police force who is discharged after being certified, pursuant to section 10B (1), to be incapable, from a specified infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990, or

(b)...

(1A) Subject to this section, the annual superannuation allowance for a disabled member of the police force is:

(a)...

(b)...

(c)...

(1AA)...

(1B)...

(1BA) A superannuation allowance referred to in subsection (1A) or an additional amount of a superannuation allowance referred to in subsection (1D) is not payable to a disabled member of the police force unless an application for payment of the allowance or additional amount concerned is made:

(a) before the member reaches the age of 60 years, or

(b) not later than 5 years after the member resigns or retires, whichever is the later.

(1C)...

(1D) STC may:

(a) make a determination at any time of an additional amount of a superannuation allowance under this section, and

(b) vary any such determination at any time,

and may direct that the determination or variation take effect from such date as STC considers appropriate.

(2)...

(3)...

(4)-(7) (Repealed)

Section 10A - Injury management program

(1)...

(2)...

(3)...

Section 10B - Medical examination of disabled member and determination of whether hurt on duty

(1) An annual superannuation allowance or gratuity must not be granted under section 10 to a member of the police force who is discharged unless STC (having regard to medical advice on the condition and fitness for employment of the member) has certified the member to be incapable, from a specified infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990 .

(2) An annual superannuation allowance or gratuity must not be granted under section 10 to a former member of the police force who resigned or retired unless:

(a)...

(b)...

(c)...

(2A)...

(2B), (2BA) (Repealed)

(2C) In this section:

medical advice means the advice of:

(a) 2 members of the Police Medical Board, or

(b) any one or more medical practitioners nominated by the STC.

(3)...

Section 10C - Redemption of superannuation allowance granted to disabled member

(1)...

(1A)...

(2)...

(3)...

The SA Act

52	Under s 67 of the SA Act, any "dispute" must be determined by the Trustee.

S 67 - Determination of disputes

(1) A dispute under this or any other Act concerning an STC scheme is to be determined by STC or an STC disputes committee, except as otherwise provided by the regulations.

(2) ...

(3) In determining a dispute, STC, an STC disputes committee or the relevant trustee may inform itself on any matter in such manner as it thinks fit and, in so doing, is not bound to observe rules of law relating to evidence.

And:

S 88 - Appeals

(1) A person aggrieved by a determination of STC or an STC disputes committee under section 67 (relating to determination of disputes) may appeal against the determination to the Industrial Relations Commission in Court Session (the "Commission").

(2)...

(3) In dealing with the appeal, the Commission may exercise any function that could have been exercised by STC or the STC disputes committee, as the case may be, in making the determination the subject of the appeal.

(4)...

(5)...

(6)...

53

Therefore, s 10 of the PRS Act provides the mechanism whereby a contributor to the Police Superannuation Scheme obtains pension benefits for Hurt on Duty infirmities. A distinction is made between serving officers who apply for medical discharge and former officers who have already been discharged for non-Hurt on Duty reasons. This distinction is borne out by the different paths to certification contained in s 10B(1) and s 10B(2) respectively. However, following certification of infirmity, these different statutory paths merge and the subsequent steps are the same, namely: certification of the infirmity Hurt on Duty by the Commissioner of Police (s 10B(3)(a)); payment of the pension at the base rate of 72.75 percent salary of office (s 10(1A)(a)); increases in base rate commensurate with incapacity (s 10(1A)(b)); if totally incapacitated then, if applicable, a further increase (up to 100 percent) commensurate with exposure to risks not normally experienced by the general work force (s 10(1A)(c)).

54

Under the scheme of the PRS Act, an application for superannuation or for an additional allowance can be made by a "disabled member" (a member of the Police Force who is discharged and certificated under s 10B(1) such as the appellant) at any time up until 60 years of age or no later than 5 years after the member resigns or retires. Relevantly. therefore, an additional amount of a superannuation allowance can be granted "at any time" to a disabled member up until the member turns 60 years.

55

The correspondence from STC indicates the Trustee contended there was no "dispute" raised by the appellant's application to add another infirmity, namely, PTSD. If there was "no dispute", the Trustee contends Mr Miles could not be an "aggrieved person" under s 88 of the SA Act and, therefore, the appellant would not have appeal rights in the circumstance before the Court.

The Applicable Principles

56

The real issue in this appeal is the use of the Trustee's discretionary power. The basis on which the courts may review a Trustee's exercise of discretion was discussed by McDougall J in John Gilberg v Stevedoring Employees Retirement Fund Pty Ltd [2008] NSWSC 1318 at [14] where his Honour adopted his reasoning in Baker v Local Government Superannuation Scheme [2007] NSWSC 1173:

[14] Where, under a trust instrument, the powers of a trustee are discretionary, the basis on which the courts may review a trustee's exercise of discretion are limited. I summarised the position in Baker v Local Government Superannuation Scheme at [2007] NSWSC 1173 at [2] to [8] as being that there are four recognised grounds of intervention:

(1) the trustee does not exercise the discretion in good faith;

(2) the trustee does not give real and genuine consideration to the exercise of the discretion;

(3) the trustee does not exercise the discretion in accordance with the purpose for which it was conferred; and

(4) if the decision was one to which no reasonable trustee could have come in the circumstances, taking into account the material available to the trustee.

[15] It is clear that these grounds may, and in the usual case will, overlap to some extent.

[16] There is sometimes identified a further ground for intervention. Where a trustee gives reasons, the Court may examine those reasons (unless the reasons were given in or for the purpose of proceedings in which the exercise of discretion is challenged). If, upon examination, the reasons are found to be unsound, then the Court may intervene. It may do so if (by way of example only) the reasons show that the trustee took into account irrelevant matters, or failed to take into account relevant matters.

[17] The principles that I have stated find their source in cases dealing with discretionary trusts, other than superannuation or pension fund trusts. They have, however, been extended to, and applied in, cases dealing with such funds.

and:

[46] The decision in Tonkin can be distinguished. In that case, the entitlement to the benefit - more accurately, the "entitlement" to have the discretion exercised in favour of the worker - depended on the formation of an opinion by the respondent. The opinion was to be formed at the time the claim was made, and on the basis of the medical evidence put forward in support of it. A decision one way, on the basis of evidence available at the time the decision was made, would not preclude the submission of further evidence. ...

[48] ... There is a real interest in the final resolution of questions of entitlement. SERF owes obligations to all members of the fund, not just to Mr Gilberg. It is not in the interests of the other members of the fund that claims properly dealt with ... should be open to endless reagitation.

[49] If there were some right to have the matter reconsidered, or some duty on SERF to reconsider, ... an applicant for reconsideration would need to put substantial grounds before SERF to enliven that right or duty. There is no basis for thinking that SERF would be obliged to reconsider whenever and so often as it pleases a dissatisfied applicant to request it. If there is such a right or duty, the applicant must show sufficient grounds - some new material or relevant change in circumstances - that bear (or are rationally capable of bearing) on the questions of medical opinion to which ... attention is directed.

...

[54] ... it could nonetheless be that a reasonable trustee in SERF's position, knowing what SERF knew, could have decided not to reopen the matter. But, in my view, SERF's attitude was overwhelmingly coloured by its view that it had no power to reopen. If it were required to consider the merits of the application (and if, contrary to my view, sufficient merits had been demonstrated to enliven the obligation), it should do so unblinkered by its view as to lack of power; and the alternative and blinkered consideration (in the events that have happened) should not be given dispositive weight.

57

Young JA, in Swift v SAS Trustee Corp [2010] NSWCA 182, 3 August 2010, in an appeal from a District Court decision examining a Trustee's determination (as to the date from when a pension was to be paid) adopted the above principles governing the use of a Trustee's discretionary power with further comment as follows:

[45] The language of "proper, genuine and realistic consideration" was introduced into administrative law in Khan v Minister for Immigration, Local Government and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291 and Broussard v Minister for Immigration and Ethnic Affairs (1987) 21 FCR 472 at 483 (Gummow J). That which had to be properly considered was "the merits of the case". Taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review: Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; 143 LGERA 277 at [79]. If it is demonstrated in a particular case that an administrative decision-maker has failed to address a claim properly made, or has failed to identify the statutory power under which the claim should properly be disposed of, there will be a constructive failure to exercise jurisdiction. Relief will be available accordingly. Thus, "to fail to respond to a substantial, clearly articulated argument relying on established facts was at least to fail to accord [the applicant] natural justice": Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [24] (Gummow and Callinan JJ, Hayne J agreeing) and [86]-[88] Kirby J), applied by this Court in Spanos v Lazaris [2008] NSWCA 74 at [19], in my judgment, Beazley and Bell JJA agreeing. Where a decision-maker does address the claim, by reference to the correct power, asking whether he or she did so "properly" or "genuinely", or "realistically" may be taken, inappropriately, as an invitation to assess the correctness of the result, rather than the legality of the process.

[46] The language was used again in the context of a statutory provision requiring a tribunal to give an applicant an opportunity to appear before it and give evidence. In NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; 228 CLR 470 at [171], Callinan and Heydon JJ noted the Minister's acceptance that such a provision "by implication, refers to a hearing where the evidence given is to be given proper, genuine and realistic consideration in the decision subsequently to be made". Their Honours noted that "unfairness can spring not only from a denial of an opportunity to present a case, but from a denial of an opportunity to consider it": at [172].

[47] The use of such language in administrative law is not common, no doubt in large part because of the risks of misapplication. However, understood as a label invoking procedural unfairness or a constructive failure to exercise jurisdiction, its use is unexceptionable. In the present case, it could have been used either to encompass a failure to consider relevant considerations or as describing the result as manifestly unreasonable. ...

58	Basten JA in Swift at [38] identified the issue in identical terms to that before us on appeal:

... the substance of the appellant's complaint was that the trial judge had either addressed the 'wrong question' or failed to give real consideration to the 'correct question'.

59	In Karger v Paul [1984] VicRp 13; [1984] VR 161 McGarvie J, when considering the use of discretionary powers, held (at 163 - 164):

In my opinion the effect of the authorities is that, with one exception, the exercise of a discretion in these terms will not be examined or reviewed by the courts so long as the essential component parts of the exercise of the particular discretion are present. Those essential component parts are present if the discretion is exercised by the trustees in good faith, upon real and genuine consideration and in accordance with the purposes for which the discretion was conferred. The exception is that the validity of the trustees' reasons will be examined and reviewed if the trustees choose to state their reasons for their exercise of discretion.

60	Therefore while the Trustee holds a discretion that discretion, in law, must be exercised after real and genuine consideration of the application before the Trustee.

61

The Trustee has, pursuant to s 10 of the PRS Act, the power, duty or function of determining whether the relevant member was incapable from a specified infirmity of body or mind of personally exercising the functions of a Police Officer referred to in s 14(1) of the Police Act . The Trustee must bring its mind to bear as to whether a member of the fund was, at the relevant time, incapable of carrying out his or her duties because of a prescribed infirmity. The terms of s 10 require the Trustee to form an opinion as to whether the member was incapable of carrying out his or her functions of office as the result of an infirmity.

62

The appellant is already in receipt of a pension and asks for a consideration of the addition of a further infirmity to his s I0B(1) Certificate. If he was successful in the application he could be granted a further variation (read increase) to his pension. As to this circumstance, Staff J held at [37]:

Having obtained all that he claimed up to 2 February 2006 (except for a finding of total incapacity) and having specifically relied upon the conclusive nature of the certificate to obtain his increase in pension, in my view, the applicant cannot now be validly "aggrieved" by the terms of the s 10B(1) certificate.

His Honour then accepted, in the circumstance, there could be "no dispute". His Honour in dismissing the appeal added a further reason, namely: to allow the appeal would be to add complexity to the scheme.

63

There was, therefore, no consideration given by his Honour or STC to the merits of the application to amend the certificate - that is, to the issue raised in the application, namely: whether the applicant suffered at discharge the condition of PTSD and whether the symptoms of that disorder could be camouflaged by the condition of idiopathic epilepsy and whether that condition (if established) affected his ability to exercise his function as a police officer (s 10B).

64

It has already been determined (see SAS Trustee Corporation v Daykin [2002] NSWIRComm 124; (2002) 115 IR 172 (" Daykin "), Saad v Commissioner of Police (1995) 12 NSWCCR 70, Murray v Commissioner of Police [2004] NSWCA 365; (2005) 2 DDCR 31 and Day v Commissioner of Police [2009] NSWCCA 222; (2009) 187 IR 338) that while a s 10B(1) certificate is conclusive at the time of issue, other infirmities identified at a later time, can be added to a certificate. The appellant has offered new medical opinion to support the application to amend the 2003 certificate. The statute provides no time limit for additions to a certificate under s 10B(1) (although a certificate under s 10B(2) does have some time limits) and allows very broad time limits for any application either for certification or variation of the superannuation allowance. It follows STC could not thwart the appellant's statutory right to apply for a variation by refusing to consider the application to amend the s 10B(1) certificate.

65	Young JA held in Swift at [52]:

The Police Regulation (Superannuation) Act 1906 (to which I will simply refer as "the Act") by section 10B, in the events which have happened operates so that if a police officer retires after being injured at work and then, years later, makes application for a benefit under the legislation, if certain conditions are met, the most significant being that two government appointed medical officers give the appropriate certificate, the pension is payable to the officer.

66

In holding there was no dispute because the appellant could not be "aggrieved by the original decision that certified all of the medical conditions he claimed", STC failed to give proper consideration to the merit of the claim. I find, therefore, his Honour, in upholding this reasoning, was in error. Upon provision to STC of a proper application supported by medical evidence, STC was bound to consider that application on its merits.

67

We further reject the proposition that because the appellant made an application for variation or placed reliance upon his original s 10B(1) Certificate at a time earlier than the medical evidence he relies on was available, there exists, therefore, a legal estoppel to his claim. An estoppel in law requires there has been a finding on the same issue. The Trustee has never considered the PTSD claim.

68

All matters relied upon by the respondent to this appeal may be relevant to STC's consideration but the Trustee must undertake that consideration. The court is cognisant, in the circumstances, that making an application after seven years to allege another incapacity is not a circumstance necessarily desirable. This is especially so where the appellant was given a further opportunity to identify his incapacitating conditions in 2006 when he conducted a second litigation relying on the conclusive nature of his first certificate to claim an increase in his allowance. However, under the statutory scheme, the appellant is required to establish his entitlement through medical evidence. He received that evidence in 2009. It is obligatory, if the material that was provided to STC raised an arguable case for the addition of an infirmity, that the Trustee must consider the application and form an opinion. Notwithstanding STC suspects the motivation of the appellant is to gain an increase in his pension allowance, such a view should not be given "dispositive weight", given the considerable evidence accompanying the new s 10B(1) application.

69	The Trustee forms that opinion after seeking medical guidance. As was said by Hungerford J in Woodlands v SAS Trustee Corporation [2001] NSWIRComm 232 at [38] and adopted in Daykin at [28]:

... it is to be emphasised ... if an officer has the benefit of an existing certificate with a specified infirmity or infirmities then it is not open to add another infirmity unless that other infirmity itself was causally connected to the incapability to perform duties.

70

We find the appellant did raise a dispute before STC. In requesting the addition of a new infirmity he, in effect, disputes that the infirmities on his s 10B(1) certificate, with which he was satisfied until receiving further medical advice, are not conclusive as to the infirmities he suffered on duty at the time of his termination. It is the s 10B(1) certificate issued by the STC that requires amendment. The Trustee failed to address the question raised in the new application. The Trustee, through its delegate, made a determination not to consider the application and the appellant was aggrieved by that determination. There is, therefore, power for the Court to hear the appeal under s 88 of the SA Act.

71	While the Industrial Court has power to review the merits of a claim,I agree with the appellant's contention it is, in the circumstances, appropriate for the application to be referred back to the Trustee for proper consideration.

72

Leave was granted on 19 August 2010 to the appellant for an extension of time to bring the appeal. I have accepted the appeal raises substantial issues of law with respect to the application of ss 23E, 66 and 88 of the SA Act and s 10 of the PRS Act. The appeal also raises issues as to the duties and obligations of the Trustee.

73	The principles concerning the grant of leave to appeal are well established. The Full Bench held in Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409, (2005-2006) 150 IR 263:

[5] The law and practice governing leave to appeal is well settled and does not require restatement: see Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. However, two principles warrant particular mention: first, leave will not be lightly or automatically granted (see King v State Bank of New South Wales (No 2) [2002] NSWIRComm 353; (2002) 126 IR 407 at [52]- [55] and Knowles at 381 - 382) and, subject to the requirements of s188 (2) of the Act , will not, generally, be granted unless the appellant demonstrates that the appeal "raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application" (see Knowles at 382) or raises issues going to the proper administration of justice. Secondly, leave will rarely be granted where an appeal primarily seeks to challenge findings of fact which are otherwise reasonably open on the evidence: Box Valley Pty Ltd v Price [2000] NSWIRComm 117; (2000) 97 IR 484; Austin v NF Importers Pty Limited [2005] NSWIRComm 353 at [5].

In this matter I would grant leave to appeal.

74	I would make the following orders:

(1) Leave to appeal is granted.

(2) The appeal is upheld.

(3) The matter is remitted to the trustee for consideration.

Orders

75	The orders in this matter are those proposed by Boland J namely:

(1) Leave to appeal is granted.

(2) The appeal is dismissed.