Cameron v SAS Trustee Corporation [2011] NSWIRComm 69 (25 May 2011)

Last Updated: 20 June 2011

Industrial Relations Commission New South Wales

Case Title:	Cameron v SAS Trustee Corporation
Medium Neutral Citation:	[2011] NSWIRComm 69
Hearing Date(s):	2, 3 and 4 May 2011
Decision Date:	25 May 2011
Jurisdiction:	Industrial Court of NSW
Before:	Marks J
Decision:	1) The time during which the applicant must make the appeal, the subject of these proceedings, is extended to and including 11 September 2009. 2) I find that the applicant is entitled to be paid a total and permanent invalidity benefit under s 39 of the State Authorities Superannuation Act , being satisfied that his cessation of employment with NSW Maritime was due, directly or indirectly, to a permanent mental incapacity and that when he ceased to be employed by NSW Maritime, he was permanently unable, by reason of that mental incapacity, to be engaged, or to be employed in any remunerative occupation in which, in the opinion of the Court, it would otherwise be reasonable to expect him to engage. That mental incapacity is constituted by a major depressive disorder, which is moderately severe and chronic, and an adjustment disorder with mixed anxiety and depressed mood, also chronic. 3) The appeal of the applicant is upheld. 4) The respondent is to pay the applicant's costs of the proceedings in an amount assessed under the Legal Profession Act in default of agreement.
Catchwords:	SUPERANNUATION APPEAL - appeal against a decision of SAS Trustee Corporation to deny benefits - claim for total and permanent invalidity benefit -application lodged out of time - whether applicant should be granted leave to institute proceedings - whether applicant totally and permanently incapacitated - expert opinions - "any remunerative occupation" - burden of proof - held applicant entitled to total and permanent invalidity benefit - factors regarding whether leave should be granted for extension of time finely balanced - extension of time granted - appeal upheld - orders made
Legislation Cited:	State Authorities Superannuation Act 1987 - s 39 Superannuation Administration Act 1996 - s 48, s 49, s 51, s 67, s 88
Cases Cited:	Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 Chammas v Harwood Nominees Pty Ltd (No 1) [1993] 7 ANZ Ins Case 61 - 175 Dolton, Noel v Sasb [1995] NSWIRComm 296 Finch v Telstra Super Pty Ltd [2010] HCA 36 Gedeon v First State Super Trustee Corporation [2005] NSWIRComm 62 Halloran v Harwood Nominees Pty Ltd [2007] NSWSC 913 Kenan Berk v Westpac Securities Administration Ltd [2010] NSWSC 28 McKenzie v SAS Trustee Corporation [2009] NSWIRComm 177 Munios v Johnson and Johnson Retirement Benefits Limited (unreported, 5 December 1996), No 3597 of 94) Nile v Club Plus Superannuation Pty Ltd & Anor [2005] NSWSC 55 Swift v SAS Trustee Corporation [2010] NSWCA 182
Texts Cited:
Category:	Principal judgment
Parties:	Bruce Malcolm Cameron (Applicant) SAS Trustee Corporation (Respondent)
Representation
- Counsel:	Mr G Beauchamp of counsel (Applicant) Mr T Ower of counsel (Respondent)
- Solicitors:	WG McNally Jones Staff (Applicant) SAS Trustee Corporation Disputes and Appeals (Respondent)
File number(s):	IRC 1430 of 2009
Publication Restriction:

Judgment

1. This is a superannuation appeal. The applicant is Bruce Malcolm Cameron who was, for many years, employed by the organisation now known as NSW Maritime Authority. In the course of his employment, the applicant became depressed and developed other symptoms of a psychiatric disorder which resulted in him being medically retired on 4 May 2006. The applicant was a member of the State Authority Superannuation Scheme ("SASS"). He brought a claim to be paid a total and permanent invalidity benefit under s 39 of the State Authorities Superannuation Act 1987 ("the Act"). That claim was ultimately denied. In these proceedings, the applicant has appealed from the decision to deny him benefits. In addition to this issue, the applicant failed to initiate the appeal to this Court within the time prescribed by the Act and the Court is also called upon to determine whether the applicant should be given leave to institute the proceedings although out of time.

2. Section 39 of the Act is in the following terms:

39 Benefit on total and permanent invalidity before early retirement age

The benefit provided by this section is payable by STC to a contributor where, before attaining the early retirement age, the contributor ceases to be employed by an employer and STC is satisfied:

(a) that the contributor's cessation of employment was due, directly or indirectly, to the permanent physical or mental incapacity of the contributor (not caused by any act or default of the contributor intended to produce that incapacity), and

(b) that the contributor is, when the contributor ceases to be employed by the employer, permanently unable, by reason of that incapacity, to be engaged, or to be employed, in any remunerative occupation in which, in the opinion of STC, it would otherwise be reasonable to expect the contributor to engage.

The benefit provided by this section is an amount equal to the sum of:

(a) the amount of the contributor-financed benefit,

(b) an amount of employer-financed benefit calculated in accordance with the formula:

E = S x A x 0.025

where:

E represents the amount to be ascertained,

S represents the higher of the contributor's final salary or the contributor's final average salary, and

A represents the accrued benefit points for the contributor at the contributor's exit date, and

(c) where an approval under section 20 (Additional benefit) is in force-the amount of the additional benefit.

STC is entitled to rely on a certificate by an employer as to any matter mentioned in subsection (1) (a) if it thinks fit.

If STC makes a determination under section 45A in relation to a benefit to be provided by this section, the amount of that benefit is reduced by the amount specified in STC's determination.

The factual background

3. The following narration is taken from the evidence given in the proceedings, which was predominantly in documentary form, supplemented by oral evidence to which I shall refer to the extent relevant.

4. The applicant is currently 48 years of age. He commenced employment with the New South Wales Maritime Services Board in July 1983, then aged 21, as a trades labourer. At the time of joining, the employer was known as NSW Waterways Authority. The applicant was a member of the Harbour Cleaning Services department. Between 1983 and 1994, he worked in the shipyard as a trades labourer holding trades certificates as a saw doctor. The shipyard closed and he was transferred to the Harbour Cleaning section. At that time he held a certificate for rigging, scaffolding and formwork.

5. Whilst working as an Environmental Service Officer ("ESO") in the Harbour Cleaning section, the applicant came into contact with a supervisor, Mr Leslie Brix-Nielsen. The evidence is not clear as to precisely when this occurred. However, there are in evidence email communications from Mr Brix-Nielsen to a human resources officer complaining that the applicant and one other person did not hold a current NSW driver's licence and an indication that this was a necessary prerequisite for the work that was being carried out.

6. The applicant commenced to complain that Mr Brix-Nielsen treated him "in a contemptuous and dismissive fashion." He said that he endeavoured to continue with his work but by mid-2002 he was finding it difficult to work under his supervision. In narrating this evidence I should make it clear that whether or not and to what extent the applicant was harassed by Mr Brix-Nielsen was not an issue in the proceedings and it has not been determined, nor is it necessary to determine, whether the allegations are correct.

7. In June 2000, the applicant complained to the General Manager, Operations and other personnel concerning some instances that he said constituted harassment. I emphasise that it is possible that Mr Brix-Nielsen was doing nothing more than carrying out his managerial functions. Whatever is the case, it is clear that the applicant reacted badly to his interaction with Mr Brix-Nielsen.

8. After investigation, the General Manager, Operations wrote to the applicant stating that changes were to be made to processes involved in formal counselling of employees by supervisory staff, to be monitored by a human resources officer.

9. Despite this, the applicant continued to come into contact with Mr Brix-Nielsen. He said:

I began to lose sleep and was becoming irritated and irritable ... in July 2002 I woke sweating profusely and bleeding from the cheek. The next day my state was uncontrollable. I went to work early, without realising it, and broke down.

He saw a workplace counsellor and consulted him on five occasions between 25 July 2002 and 11 September 2002. In a letter, the counsellor said: "Bruce presented with stress associated with ongoing conflict with management within the Harbour Cleaning department."

10. As a result of advice given by the workplace counsellor, the applicant was referred by his general practitioner to a psychiatrist, Dr Thomas Newlyn. He first consulted Dr Newlyn on 21 August 2002. He was prescribed medication.

11. Details of the applicant's further working history are provided by Susanne Ohanian, the Manager, Human Resources of NSW Maritime Authority. The applicant had a period of leave between 25 July 2002 and 27 September 2002, for which was ultimately paid workers' compensation benefits. He then worked on selected duties until certified fit to return to his normal duties in June 2003. However, upon return to full duties, he again came into contact with Mr Brix-Nielsen and complained that he was again being "harassed and bullied". He was off work from 13 June 2003 to 17 October 2003 and was again paid workers' compensation benefits.

12. Upon return to work, the applicant was again given alternative duties.

13. In November 2003, consideration was given by Ms Ohanian to the applicant taking medical retirement.

14. In April 2004, the applicant was required to reapply for his substantive position as an Environmental Service Officer. He was concerned to find out that Mr Brix-Nielsen was on the selection panel. His application was rejected because did not hold a driver's licence. This was an advertised prerequisite for the position following a reclassification.

15. There is some reference in the evidence as to whether the applicant had represented to the Authority that he was taking steps to obtaining a driver's licence. It was put to him in cross-examination, and denied, that he had indicated that he would be in a position to secure the licence within a few weeks. I do not think that anything turns upon this controversy.

16. Some details of the work performed by the applicant whilst on restricted duties in 2002/2003 were given by Ms Ohanian in her oral evidence. An initial period of work between September and December 2002 involved carrying out work in some customer service areas but with basic clerical tasks, and assisting with storeroom and stocktake work. From January to June 2003, the applicant was given other duties including that of boatman, general boat cleaning, maintenance and cleaning out of sheds. All of this work was described by Ms Ohanian as "meaningful work", namely a number of duties which were seen to be within the applicant's capabilities having regard to his certification as fit for light work only. This work would otherwise have been done by a number of individuals but, on the evidence, appears to have been assigned to the applicant to provide some form of appropriate work for him. In neither case was Ms Ohanian prepared to consider the work performed as being that associated with "a real job".

17. Towards the end of December 2003, Ms Ohanian was considering whether the applicant should be medically retired. At the insistence of the Maritime Union of Australia, the applicant embarked upon a training program that might lead to him being trained to undertake Customer Service Officer duties. The purpose of the program was to "assist him to see it he would be suitable and would want to apply for that type of work."

18. Evidence tendered in the proceedings indicates that the applicant commenced this training in January 2004 and that it continued until 16 April 2004. He was then to commence "front counter" duties and undertake "face to face transactions as well as the cash register."

19. Ms Ohanian said that the applicant did not go onto the next stage of the training and could not recollect why. There was some evidence about whether or not the applicant had already undertaken part of the next step in the training and it may be that he declined to undertake the same training again. I do not think that pursuing this aspect of the evidence takes the matter any further.

20. The applicant undertook selected duties from 31 May 2004 for a period of about three months, which Ms Ohanian described as "doing basic clerical and basic customer service duties." This was also "meaningful work".

21. After his failed application to be reclassified as an Environmental Service Officer, the applicant became a "displaced officer" and until December 2004 carried out a variety of functions that were given to him. This was work that was said to be within his capacity but that was not associated with any particular position that was available within the Authority.

22. The applicant went on leave from December 2004 until the date of his medical retirement.

23. The applicant's further attempted rehabilitation appears to have been interrupted by the fact that he applied for the regraded ESO position, was unsuccessful and subsequently lodged an appeal with GREAT, which was also unsuccessful.

24. The applicant had been referred by his treating doctor, Dr Patrick Coorey, to Konekt, a rehabilitation provider. A report was provided to the workers' compensation insurer by Mr David Pirie of Konekt covering a period from 4 November to 7 December 2005. Mr Pirie attended a meeting with representatives of NSW Maritime on 14 November 2005. He indicated that Dr Newlyn, the applicant's treating psychiatrist, was hopeful that the applicant would be able to return to his pre-injury duties because he was no longer experiencing side-effects of dizziness from his medication, which had prevented him from undertaking that work. However, NSW Maritime advised him that the applicant's pre-injury position was no longer available and that substantial efforts had been made to redeploy the applicant in other positions, which had also been unsuccessful. On this basis, NSW Maritime was unable to offer any modified duties. The report contains this comment:

Konekt explained the potential cost of claim associated with external redeployment, and highlighted the potential barriers to job seeking including Mr Cameron's extensive time off work, potential limited transferable skills, unknown labour market, and possible motivational issues with job seeking.

The report indicates that NSW Maritime reiterated that it did not have any suitable duties available to the applicant. Mr Pirie proffered his ability to undertake work including "boat detailing, workshop maintenance, car detailing, working with commercial vessels, or within the Assets department that would be suitable." NSW Maritime confirmed that it "would not be able to offer the above mentioned duties or any others on a permanent basis."

25. There is comment made by Mr Pirie concerning an apparent inconsistency between the opinion of Dr Coorey, the treating general practitioner, to the effect that the applicant remained unfit for work until 13 January 2006 and that of Dr Newlyn, who at the relevant time had indicated that the applicant would be fit for suitable duties in one week and fit for pre-injury duties in two weeks.

26. There is also reference in the report to an inability

to obtain Mr Cameron's agreement to a vocational goal despite conducting vocational counselling and explanation of the WorkCover return to work hierarchy. Whilst he remains certified unfit for work, Mr Cameron is not obliged to engage in job seeking efforts.

However, there is also acknowledgment that "Mr Cameron has presented with a determination to pursue duties with his pre-injury employer, and will engage legal action if necessary."

27. In a letter dated 20 April 2006, to the Acting Chief Executive, Ms Ohanian canvassed three alternatives to the resolution of the applicant's employment status. She noted that he had applied for medical retirement. The three alternatives were termination of his services, the provision of an alternative position or alternative duties and medical retirement. Ms Ohanian noted that in considering the capacity of NSW Maritime to reasonably provide alternate duties and the displacement of or disadvantage to other employees occasioned thereby and the capability of establishing a new position to cater to the applicant's skills and abilities, and having regard also to his diagnosis of unfitness for work on medical grounds that "the option of alternative placement is not considered a viable proposition." She recommended medical retirement, which recommendation was supported by the General Manager, Corporate Services and approved by the Acting Chief Executive. This was subsequently processed.

28. The applicant was cross-examined about his application made in March 2004 to perform the duties of the upgraded ESO position.

29. It was put to him that despite past problems with his medication and despite the lack of a driver's licence, he would be able to do the work associated with the ESO position. He said, "I thought I may be able to, yes."

30. The applicant was also referred to his consultation with Mr Pirie in November 2004. He said that he was interested in carrying out work such as boat detailing, workshop maintenance, car detailing, working with commercial vessels or within the Assets department and "I thought I may be capable to doing them." He was asked why he hesitated in giving that evidence and he said "but it would be the effect of the medication I think, yes. I was hoping that I would be able to perform them."

31. It was further put to the applicant in cross-examination that he was capable of work as at May 2006. He denied this. He said: "And I don't believe my health is capable of performing duties." When pressed to explain this, he said:

Well, with the condition that I have, it's very hard to deal with people. I - as I said, I keep myself to myself. I find it awkward travelling. I find it awkward being in crowds. I have periods of anxiety. Probably, for want of a better word, you have panic situations. I have trouble relating to people. And that's why - that's - it's been one of those things that's stopped me from progressing now further. As you know, one hopes one is going to get better and deal with things, but unfortunately it's - it just doesn't work that way.

The medical evidence

32. A number of medical reports were tendered into evidence and oral evidence was given by two psychiatric specialists.

33. The earliest report in point of time is that of Dr Joseph Waks, a general practitioner who specialises in occupational medicine. The applicant was referred to him by Ms Ohanian and was examined on 30 October 2002. Dr Waks' report of 4 December 2002 was furnished after some delay in obtaining medical release statements and after Dr Waks had spoken to Dr Newlyn, who was then treating the applicant. Dr Waks, after referring briefly to the applicant's history as given, diagnosed the applicant as suffering from a "depressive illness/phobic reaction" and felt that his long-term prognosis was "guarded" depending upon whether or not the applicant's workplace issues could be resolved. He commented, however, "even then there may have been irreparable damage in the relationship between his team leader/manager and himself." Dr Waks thought that the likelihood of the applicant being able to return to normal duties depended upon resolution of the workplace issue.

34. It will be remembered that the applicant had been referred to Dr Thomas Newlyn, psychiatrist, at an early stage. In a report dated 14 January 2004, Dr Newlyn diagnosed a "work-related depressive illness" that began in June 2003 and for which Dr Newlyn had been treating him since 24 October 2003. He said: "I had treated a previous episode of work-related depression from 21 August 2002 through January 2003." In that report, Dr Newlyn thought that the depressive illness had improved significantly when the applicant was placed under different supervision and in a different workplace in 2002. He said:

My psychiatric opinion remains that Mr Cameron's depressive illness would greatly improve if he were transferred to another position on the same entitlements under the supervision of another person.

35. On 3 December 2005, Dr Newlyn provided a report to Mr Pirie of Konekt. This repeated the diagnosis that he had consistently given (albeit that sometimes Dr Newlyn referred to the adjustment disorder before the major depressive disorder and sometimes he reversed the order). In answer to a request, Dr Newlyn said that he expected the applicant to be able to return to suitable duties within one week and to return to his pre-injury duties within two weeks.

36. Dr Newlyn was asked to complete a medical certificate, in standard form, by State Super which he did on 27 March 2006, this being the date of his last consultation with the applicant. The certificate asked Dr Newlyn to furnish his opinion on the applicant's incapacity for work by indicating his agreement with a number of alternative propositions. In indicating which of those propositions he agreed to, Dr Newlyn certified that, in his opinion, the applicant:

Will never be able to be employed in his/her normal occupation due to this incapacity.
Is still able to be employed in some form of paid occupation - examples are (but no examples were provided by him).
Is still able to administer his/her own financial affairs.

37. In signing the certificate, Dr Newlyn agreed to the following:

I certify that the member named here is suffering from a medical condition which, in my opinion, is likely to result in their being unable ever to be employed in a capacity for which they are reasonably qualified by education, training or experience. I also certify that, in my opinion, the person has suffered from that condition for a period of three and three-quarter years.

38. For completeness, I note that the "incapacity" referred to in the certificate was one of "depression".

39. Dr Newlyn provided a detailed psychiatric report on 24 July 2006, some four months after the earlier certificate. He had not examined the applicant in the interim.

40. That report set out in some detail the history received by Dr Newlyn from the applicant, which it is not necessary to repeat for present purposes. Dr Newlyn had last been consulted by the applicant on 31 May 2006. Prior to that he had examined the applicant on a monthly basis.

41. In his report, Dr Newlyn diagnosed the applicant as suffering from "adjustment disorder with mixed anxiety and depressed mood, chronic and major depressive disorder, single episode, moderate."

42. In responding to questions put to him by State Super, to whom the report was addressed, Dr Newlyn proffered the opinion:

Mr Cameron was released to return to work by me in December 2005. However, his employer was unwilling to reemploy him so he chose medical redundancy.

He said that the applicant was "fit to resume work similar to the work he was performing at NSW Maritime", was "capable of working 30 or more hours per week" and was "capable of working part-time".

43. When responding to a question about whether the applicant was permanently unable to do any particular kinds of work, Dr Newlyn said that the applicant had

reported on 31 May 2006 that the stress of redundancy had exacerbated his depression and that he believed that he was unable to work at this time but should be able to resume work in the future.

He thought that the applicant had "a good prognosis". It should be observed that this report expresses an opinion that is inconsistent with that contained in the earlier certification of 30 March 2006 and these conflicting opinions were the subject of detailed cross-examination.

44. Before dealing with Dr Newlyn's oral evidence, I refer to a further report issued by him dated 9 October 2007 to Dr Coorey, the applicant's treating general practitioner. In that report, Dr Newlyn repeated the diagnosis that he had given in the report of 25 July 2006, which I have earlier set out. He then referred briefly to the applicant's medication and said:

Today I again said that the circumstances of his resignation from Waterways was such that I couldn't change the opinion that I gave State Super. I told him that I could no longer help him unless he sought a second psychiatric opinion with a psychiatrist of your choosing. It is possible that the second opinion psychiatrist would agree to take care of Mr Cameron, but I would be willing to accept him back with an opinion concerning care options.

45. Dr Newlyn was called to give evidence by the respondent. In examination in chief, he was referred to the conflicting opinions in the certificate and report respectively, to which I have earlier referred. His explanation centred around the fact that he was given a limited opportunity to express an opinion in the certificate because he was obliged to assign assent or otherwise to particular matters. He said that his more detailed report represented his real opinion.

46. In cross-examination, Dr Newlyn was taken to his records and, firstly, to the report to Mr Pirie of 3 December 2005, to which I have earlier referred. Dr Newlyn's detailed records subsequently became evidence in the proceedings. In those records, he had assigned, on each occasion that he saw the applicant, a "global assessment function". Dr Newlyn explained in evidence that this was intended to reflect the functionality of the patient. He said:

... God might get a 100, everybody else doesn't quite make it. Most of us function between 90 and 95; people at 80 are doing very well but are occasionally stressed by their work. At 70 you have got some stress; at 65 you are stressed but able to work.

In cross-examination, Dr Newlyn said that at 65 the global assessment function indicated that a person was visibly showing signs of stress but still able to work, but that below that level "it gets more dire." He said that at a level of 50 a person would be having difficulty with stressful work and that at level 45 he probably would not be able to work.

47. The records of Dr Newlyn indicated that as at November 2005 he had assigned a global assessment function of 45. When he reported to Mr Pirie on 3 December 2005, he changed that to 65, without having seen the applicant in the interim. He was asked why such a change occurred and he said:

That was my - on reviewing my records I decided that I had made an error in assigning an assessment of 45 and it should have been 65.

Furthermore, Dr Newlyn conceded that in furnishing his report of 3 December 2005 expressing an opinion of fitness to return to full employment within two weeks, he had not seen the applicant since 3 November 2005 and had not discussed with the applicant in any way that he was of the opinion that the applicant would be able to return to the workforce at the end of 2005. This was despite the fact that on 3 November 2005 the applicant had told Dr Newlyn that he was continuing to have difficulties about his work situation and had not worked for a year, was continuing on medication prescribed by Dr Newlyn, that his condition was chronic and that he continued to suffer from major depression. When asked whether he had given consideration to the fact that the same person who the applicant had said had bullied him as his supervisor might again be present, Dr Newlyn said that he had given no consideration to this matter and could not deal with the issue. When asked to elaborate on his opinion, Dr Newlyn said:

... I really believe that in answering a question about whether a person can return to their pre-injury duties I'm not - my role there is saying: can the person return to work? It's the employer's responsibility to make sure that the workplace is safe.

He was then asked whether he should introduce some "disclaimer" about whether the applicant should work under the same supervisor as previously. He replied that in his experience of disclaimers "they're counterproductive." By this he meant that qualifications on return to work produced "extraordinary difficulties in returning people to employment."

48. The upshot of Dr Newlyn's evidence was that he thought it would be more productive for the applicant to return to work under the care of Konekt, a rehabilitation provider, than not being at work. He would leave it to the rehabilitation provider and to the employer to ensure that the work that was provided was suitable for the applicant. At that stage, he was also unaware that the employer was considering medical retirement for the applicant.

49. Dr Newlyn conceded that in expressing an opinion about the applicant's ability to return to work with NSW Maritime, he was not familiar with the jobs that were available with that organisation and that he was "not a workplace placement specialist".

50. In re-examination, Dr Newlyn was asked about his opinion as to the applicant's fitness for work in May 2006. He said: "My opinion in May 2006 was that Mr Cameron could work, albeit maybe not at Waterways, but he could work."

51. Dr Hugh Morgan, a specialist psychiatrist, commenced treating the applicant in November 2007 having been referred by Dr Coorey. In a report to Dr Coorey of 30 November 2007, Dr Morgan diagnosed a major depressive disorder, moderately severe, chronic. He prescribed medication, and referred him to a psychologist to undertake a course of cognitive behaviour therapy. Dr Morgan has continued to treat the applicant since.

52. Dr Morgan was asked to provide a medical report to the applicant's current solicitors. That report is dated 10 August 2009. Dr Morgan said that the applicant remained "substantially disabled by his condition and ... very vulnerable to exacerbations in his condition due to relatively minor stressors ..."

53. Dr Morgan said that he believed that the applicant was totally and permanently disabled at the time that he ceased to be employed by NSW Maritime in May 2006 in that he was then permanently unable to be employed in any remunerative occupation in which it would be reasonable to expect him to be able to engage but for his condition. He said that the applicant had reached "maximal medical improvement" and that his condition:

unfortunately has become chronic and I believe is very unlikely to improve much over the ensuing years. Mr Cameron has been struggling with symptoms of mixed depression and anxiety now for more than seven years ..."

54. Dr Morgan gave oral evidence. It was put to him by counsel for the applicant that the applicant's long-term relationship had ended some four to six months before Dr Morgan had first seen him, and that prior to that time he had lived an active social life and had been a union delegate. He was then asked a question concerning the applicant's condition as at May 2006 and gave the following evidence.

Q. Does that assist you in determining how he was in May 2006 is or is not as you have seen him since 2007?

A. My impression when I first saw Mr Cameron in November 2007 was that he was quite significantly depressed and anxious. On balance of probability from looking at previous reports, from his account of events, I suspect that he is correct that he probably began to be depressed before 2002 and in my experience this is not an uncommon scenario that people may begin to develop a depressive illness and take time before they seek help. In my opinion I think that he really didn't recover over that time, despite treatment that he started with Dr Newlyn and I think that with his partner separating that this would have further exacerbated his problems.

55. Questions were put to Dr Morgan by the respondent's counsel in cross-examination which emphasised the fact that the applicant had endeavoured to return to work on a number of occasions and that this might indicate some ability to work. Dr Morgan responded that it was not uncommon that patients endeavour to return to work. He said, "I think that's an entirely reasonable thing to do and sometimes that's successful and sometimes it's not."

56. When pressed in cross-examination concerning the applicant's condition in May 2006 against the background of the opinion expressed by Dr Newlyn that the applicant had an ability to work, Dr Morgan said:

my impression is that the nature of Mr Cameron's condition is that it is chronic, that it tends to wax and wane, that's by its nature, that that tends to be affected by external events and that, I guess, I can't really say that specifically.

57. Notwithstanding cross-examination, it was Dr Morgan's opinion, expressed as a clinical impression that he had obtained, that the applicant's condition was chronic and stable and that his incapacity in May 2006, as expressed in the report of 10 August 2009, was consistent with everything that Dr Morgan knew about the applicant.

58. There appears to be only one report available from Dr Patrick Coorey. It is dated 9 February 2006 and indicates that the applicant was fit for suitable duties from 13 February 2006 to 17 March 2006. There is no hint as to what those suitable duties might be.

59. The respondent relied on a report of Dr Michael Robertson, a consultant psychiatrist who had examined the applicant on behalf of the workers' compensation insurer of NSW Maritime Authority on 25 January 2005 and provided a report dated the same day. After setting out the history that he had taken, Dr Robertson diagnosed the applicant as suffering from "dysthymic disorder", complicating a personality with narcissistic traits. He thought that there had been a "work-related aggravation of Mr Cameron's personality ...", and that "the current problem is likely to be long-term."

60. In assessing the applicant's then current capacity for employment, Dr Robertson said that he was unlikely to return to employment under the influence of the person whom he had perceived to bully him. Dr Robertson said:

I suspect that retraining and redeployment is the only credible option. I think he would be fit to return to work under a graded return to work program, with a rehabilitation provider, perhaps in a different field ... I do believe that ultimately this worker, if he is to return to full pre-injury hours, will need to be given a specific work description, subject to regular constructive performance reviews, although these are clearly industrial rather than clinical issues.

Dr Robertson proffered a prognosis in these terms: "This condition is likely to persist long-term. I suspect there will be long standing psychological distress."

61. The applicant did not require Dr Robertson for cross-examination for reasons that are obvious given his opinion.

The statutory framework

62. The Superannuation Scheme, which is the subject of this claim, is regulated by the provisions of the Superannuation Administration Act 1996. The administration of the Scheme is undertaken by SAS Trustee Corporation, also called STC (Section 48). STC is the trustee of the Scheme. Section 49 of this Act is as follows:

49 STC to be trustee for STC schemes

STC is the trustee for the STC schemes and is to hold in trust for the persons who are or will be entitled to benefits under the STC schemes all assets held by, and all contributions and other money paid or payable to, STC under this Act and any Act under which an STC scheme is constituted or established.

STC is a trustee for the purposes of the Trustee Act 1925. Accordingly, subject to this Act, and unless this Act, the Trustee Act 1925 or any other Act otherwise provides, STC has the obligations, rights and duties of a trustee under Division 2 of Part 2 of the Trustee Act 1925.

63. In addition to the normal fiduciary duties that would apply to STC as a trustee, certain duties are provided for specifically by s 51 of that Act, which is in the following terms:

51 Duties relating to functions

STC must:

(a) act honestly in all matters relating to its functions relating to the STC schemes, and

(b) exercise, in relation to all matters affecting the STC schemes, the same degree of care, skill and diligence as an ordinary prudent person would exercise in dealing with property of another for whom the person felt morally bound to provide, and

(c) 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, and

(d) not enter into any contract or arrangement, or do anything else, that would prevent STC from, or hinder STC in, properly exercising STC's functions as a trustee.

In exercising its functions, STC must have regard to:

(a) the interests of persons entitled to receive benefits under the STC schemes, and

(b) the Heads of Government Agreement, commencing 1 July 1996, relating to the exemption of certain State public sector superannuation schemes from the Superannuation Industry (Supervision) Act 1993 of the Commonwealth, and

(c) the future liabilities of the STC funds, and

(d) any statement in writing of the policy of the Government on any matter that is relevant to the functions of STC given by the Minister to STC.

Subsection (1) (d) does not prevent STC from entering into a contract or an arrangement under section 53.

64. If any dispute arises under that Act, including a dispute as to the payment of any benefits, it is dealt with in accordance with s 67, which is in the following terms:

67 Determination of disputes

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.

Regulations made for the purposes of subsection (1) may require that a dispute concerning the entitlements or obligations of an employee or beneficiary arising in respect of service by the employee with an employer that:

(a) was responsible for the payment of benefits under an STC scheme of which the employee was a member or to which the employee was a contributor, and

(b) has ceased to be responsible for the payment of benefits under that scheme but is responsible for the payment of benefits under a new superannuation scheme created in accordance with section 127,

be determined, not by STC or an STC disputes committee, but

by the trustee of the new superannuation scheme.

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.

A trustee acting in accordance with regulations referred to in subsection (2) and an STC disputes committee have and may exercise the powers conferred on STC by sections 66 and 68.

This section does not apply to a dispute in respect of which an application may be made to the District Court under section 21 of the Police Regulation (Superannuation) Act 1906.

65. The appeal to this Court is provided for by s 88 of that Act, which is in the following terms:

88 Appeals

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 ).

The appeal must be made within 6 months after the appellant is notified of the determination or within such further period as the Commission allows.

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.

In dealing with the appeal, the Commission is to have regard to this Act and any other relevant provisions regulating the superannuation scheme concerned and such other matters as it considers to be relevant.

In dealing with the appeal, the Commission is not bound by the rules of evidence and may inform itself in any manner it thinks fit.

The final determination made by the Commission on the appeal is to be given effect to as if it were a determination of STC.

66. The provisions of s 88 have recently been considered by Haylen J in this Court in McKenzie v SAS Trustee Corporation [2009] NSWIRComm 177. His Honour made the following observations, which I gratefully adopt.

[191] Having set out the statutory provisions, some brief discussion is necessary concerning the role of the Court on appeal and the manner in which it is to perform its task. The appeal is from an administrative decision taken in circumstances where, although submissions and medical reports are received, there is no requirement for the STC to act as a tribunal conducting a formal hearing. In dealing with disputes, while the STC is bound by the provisions of s 51 of the Superannuation Administration Act , it is only when an appeal is made under s 88 of that Act that a hearing is held. In Gedeon v First State Super Trustee Corporation [2005] NSWIRComm 62, Marks J dealt with the almost identical provision then appearing as s 40 of the Superannuation Administration Act . His Honour held that s 40 provided for a hearing de novo leaving the Court to determine the matter by reference to such evidence as the parties placed before it and any other material that the Court might properly consider. It was observed that s 40 did not limit the Court in hearing an appeal to the materials considered by the relevant superannuation authority. While those provisions have since been repealed, there appears to be no reason to treat s 88 of the current Act in any different way. This approach is consistent with the process of categorisation of appeals dealt within in the Builder's Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616 where the High Court pointed to certain provisions as are present in s 88 as might lead to the conclusion that the appeal is by way of a de novo hearing. Nevertheless, the High Court cautioned that, in the end, the answer would depend on an examination of the legislative provisions rather than attempting to classify the administrative authority as one which was entrusted with an executive or quasi-judicial function.

[192] As the task of determining the nature of the appeal is primarily a question of elucidating the legislative intent ( BLB v Sperway per Mason J at 621-622) it is significant that in s 88(3), on appeal, the Court may exercise any function that could have been exercised by the STC or its disputes committee in making the determination that is the subject of the appeal. By s 88(4), on appeal, the Court is to have regard to the Superannuation Administration Act and any other relevant provision regulating the superannuation scheme concerned and such other matters it considers relevant. By sub-section 5, in dealing with the appeal, the Court is not bound by the rules of evidence and may inform itself in any manner it thinks fit. By sub-section 6, the final determination made by the Court on appeal is to be given effect to as if it were a determination of the STC. By these provisions the legislature has given a clear direction that in effect, on appeal, the Court acts as if it were the STC and is to have regard to the obligations and functions imposed on the STC as well as the powers that may be exercised by the STC. In this rather unusual appeal provision the Court, acting in place of the STC, makes a final determination in the present matter of whether or not Mr McKenzie satisfies the provisions of s 10B of the Police Regulation (Superannuation) Act , namely, having regard to medical advice on the condition and fitness for employment, it can be certified that the former member of the Police Service was incapable, from an infirmity of body or mind, of personally exercising the functions of a police officer.

67. I shall refer further to the role of this Court in determining an appeal under s 88 when considering the provisions of s 39 of the State Authorities Superannuation Act , under which the applicant has claimed the total and permanent invalidity benefit in the context of the state of the material available to the Court when determining whether the applicant's appeal succeeds.

The total and permanent invalidity benefit

68. The relevant provision under which such a benefit becomes payable is s 39 of the State Authorities Superannuation Act , which I have set out at [2]. The proceedings before the Court were conducted by both parties on the basis that the applicant had satisfied the provisions of s 39(1)(a). The respondent so conceded.

69. Accordingly, I proceed on the basis that the applicant ceased to be employed by NSW Maritime and that such cessation was due either directly or indirectly to his permanent physical or mental incapacity.

70. It is obvious, but nevertheless I must state it, that the incapacity which is referred to in s 39(1)(a) is an incapacity to be employed by NSW Maritime. It is not necessary in the circumstances of these proceedings for me to consider the nature of the employment of the applicant for which he is permanently incapacitated having regard to the various duties that were given to him from time to time, to which I have previously referred.

71. This leaves for consideration the application of s 39(1)(b), which was the focus of the contest between the parties. I observe, firstly, that the state of affairs that is to be considered when dealing with s 39(1)(b) is that which existed as at the date that the applicant ceased to be employed by NSW Maritime, namely 4 May 2006.

72. The other matters that need to be considered are more contentious. These are:

1) The nature and extent of any permanent inability to work of the applicant.
2) Such inability being caused by any permanent physical or mental incapacity.
3) That the inability to work is in any remunerative occupation.
4) In which it would "otherwise" be reasonable to expect the applicant to engage.

73. I shall return to 1) and 2) above when I review the state of the evidence and the conclusions that I am able to draw from that evidence.

74. Before proceeding further, however, it is necessary to deal with 3) and 4). I first consider what is intended by the words "any remunerative occupation".

75. I was informed by counsel for the parties during the course of the hearing that there is no decided case which has determined the meaning of the words used in s 39(1)(b). I observe that both counsel practise widely in the area of superannuation law and have appeared as counsel in many of the authorities to which I am about to refer.

76. Both counsel were in agreement that the Court should adopt the "common sense" approach applied by a number of judges in the Supreme Court of New South Wales when considering superannuation appeals, albeit that the precise wording of the definition being considered was different and, in some cases, markedly different.

77. In Chammas v Harwood Nominees Pty Ltd (No 1) [1993] 7 ANZ Ins Cas 61 - 175, Hodgson J (as his Honour then was) said, in part:

and I think those words sufficiently indicate that the relevant employment is full time employment, and that the question is not merely incapacity to engage in some theoretical employment, but actual likelihood of obtaining employment.

In Munios v Johnson and Johnson Retirement Benefits Limited (unreported, 5 December 1996, No 3597 of 94), McClelland CJ in Eq (as his Honour then was) said:

In other words it is in the context of the real world, not that of some theoretical abstraction, that the criterion provided by the definition of total and permanent disablement needs to be applied.

78. In Halloran v Harwood Nominees Pty Ltd [2007] NSWSC 913, Brereton J said, at [47]:

[47] Also like Hodgson J in Chammas , I would conclude that the reference to employment must be given a reasonable construction, limited to full-time employment reasonably open to the member, being employment which the member is capable of undertaking having regard to his education, experience and training, or at least could have become capable of undertaking with further training that it would be reasonable for him to undertake. In my view, there is significance in a context in which disability is often qualified by the adjective "total and permanent", in the circumstance that those words do not appear in clause 18.1. The degree of disablement required by clause 18.1 is less than "total and permanent", notwithstanding that "disability" is said by some of the dictionary definitions to have a connotation of permanence. Light duties, specifically for an injured worker, would not be the type of full-time employment in a regular occupation that the provision has in mind.

79. Nicholas J in Kenan Berk v Westpac Securities Administration Ltd [2010] NSWSC 28 went further and incorporated a concept of remunerative work for which the claimant was qualified by education, training or experience. His Honour said:

[131] The definition relates to the disability to obtain future employment in any occupation. It requires consideration of whether or not, on the evidence, it is probable that the insured would actually again work in any occupation (i.e. remunerative work) for which he is qualified by education, training or experience, and whether it is likely his injury has disabled him from doing what he is qualified to do. The court is expected to take a realistic and common sense approach in its assessment. The application of the definition is directed to the realities affecting the capacity of the insured under consideration. It is not about theory ( Sayseng v Kellogg Superannuation Pty Ltd & Anor [2003] NSWSC 945, [54]; Ivkovic v Australian Casualty & Life Ltd (1994) 10 SR (WA) 325, p 351; Nile v Club Plus Superannuation Pty Ltd & Anor [2005] NSWSC 55, [64], [65], [68]).

80. In Nile v Club Plus Superannuation Pty Ltd & Anor [2005] NSWSC 55, Brownie AJ said:

[64] As Hodgson J pointed out in Chammas , a decision that has been followed from time to time, without anyone ever apparently expressing a doubt about its correctness, and the correctness of which is not challenged now, one must consider not just the theory that someone is physically fit to do particular work, but also the actual likelihood of that person obtaining employment, meaning full time employment (or, I take it, substantially full time employment, generally comparable with the plaintiff's employment before his 1996 injury) that was reasonably open to the plaintiff. Given the plaintiff's education, training and experience, the prospects of his actually obtaining employment in any of the jobs suggested by Dr Innes-Brown were remote, and perhaps non-existent.

81. In Halloran , previously referred to, Brereton J was considering a definition of total and permanent disablement that specifically included a reference to the qualifications of the claimant. His Honour said:

[75] The second limb is whether he has become incapacitated to such an extent as to render him "unlikely ever to engage in or work for reward in any occupation or work for which he is reasonably qualified by education, training or experience".

[76] That phrase can be distilled into the following components.

(1) unlikely (meaning a probability of less than 50%) ( White v The Board of Trustees [1997] 2 Qd R 659, 673)

(2) ever to engage (meaning on a full-time regular basis) (Riley v National Mutual Life Association [1986] 4 ANZ Ins Cas 60-684, 74063; Chammas; Nile v Club Plus Superannuation Pty Limited [2005] NSWSC 55, cf Wyllie v National Mutual Life Association of Australasia [1997] 217 ALR 324; Sayseng v Kellogg Superannuation)

(3) in any occupation or work (meaning a recognised occupation, not a special light duties job for injured workers) (Cavill Power v Royale; Dolton v State Authority Superannuation Board [1995] NSWIRC at 159 [11.1]) and being work which he is likely to be able to obtain (Chammas, Nile v Club Superannuation, [64]);

(4) for which he is reasonably qualified by education, training or experience (as at the date of assessment) (Giles, Fernance)

82. I acknowledge that the reference to qualification by education, training or experience is not present in the s 39(1)(b) definition. However, the importation of such a concept is consistent with the approach to construction adopted in the several Supreme Court judgments to which I have referred as being one that reflects a common sense and realistic approach to a consideration of the availability of the benefit. I shall refer again to this aspect when dealing with the fourth matter which arises.

83. For completeness I also observe that the definition being considered by Brereton J in Halloran is different from that contained in s 39(1)(b) in that there is a reference in the former to "unlikely" whereas, it seems to me, that the concept in s 39(1)(b) is one of permanent inability. I think that this is a significant difference and I propose to consider the matter on the basis that it is necessary to conclude that there is a permanent, that is indefinite, inability for the applicant to be employed in any remunerative occupation of the kind referred to in the concluding words of s 39(1)(b). Strictly, it is not necessary, in determining the nature of any remunerative occupation of the kind referred to in s 39(1)(b), that I determine whether it should be confined to regular full time work, or may arguably include a substantive part-time position. I am prepared to proceed on the basis that both types of work would fall within what is a remunerative occupation, because of the findings that I shall make to determine this aspect of the proceedings. I should not be taken to have concluded on any final basis that a remunerative occupation necessarily includes part-time work. I should state, however, in advance of the observations that I am about to make concerning the fourth matter, that I would exclude work of a casual nature or light work manufactured to suit the particular circumstances of the applicant in the absence of any compelling evidence that such work was available. In this latter regard, I adopt the observations of Bauer J in the Industrial Court of New South Wales in Dolton, Noel v Sasb [1995] NSWIRComm 296. His Honour said, in the context of a consideration of the concept of light duties as an appropriate engagement in an industry, the following:

There is, however, a difference between a job of work given to an employee on "light duties" where the employer has to make allowances for the effect of the injuries on work capacity and work where no such obligation rests on the employer. There is no category of light duties or restricted duties within the definition of "mineworker". Whilst it is correct that the extended definition is very wide ... and includes jobs such as clerks, office workers and bathhouse attendants, those jobs though involving exacting physical work must be regarded as full duties jobs not attenuated by concepts of "light" duties. By parity of reasoning the intention of the SAS Act would seem to require participation in a "remunerative occupation" on a full time basis and in a recognised occupation not being one that is specially created such as light duties jobs made up from time to time within industry for injured workers.

84. It is now necessary to consider the fourth matter, a consideration of the opinion of the STC in the context of the formulation of a reasonable expectation.

85. I have already observed that STC is a trustee and has a number of duties imposed upon it by s 51 of the Superannuation Administration Act .

86. The respondent submitted that STC was not a trustee "in the pure sense", pointing to the administrative nature of the duties of STC. In making this submission, the respondent relied upon brief observations of Young JA in the New South Wales Court of Appeal in Swift v SAS Trustee Corporation [2010] NSWCA 182. At [68] his Honour said:

[68] I am not at all sure that this view is correct, it is artificial to consider that the respondent is a trustee in the pure sense or that the District Court is doing anything more than reviewing the discretion of a statutory authority or redeciding that matter. I will return to this issue.

87. With respect, I am unable to discern what his Honour intended by stating that it is artificial to consider the respondent as a trustee "in the pure sense", particularly as s 49 of the Act specifically designates the STC as a trustee. However, I do not think that anything turns on this, particularly when one has regard to the provisions of s 51, which I have earlier set out and which, arguably, overlap the fiduciary duties and obligations imposed upon the trustee of a superannuation scheme. Specifically, I would import into the duties and obligations of STC in considering matters under s 39(1)(b) the necessity to ensure that it did not knowingly exclude relevant information from its consideration of the applicant's claim and to ensure that it did seek relevant information in order to deal with the claim, if it thought that it was necessary to do so. I adopt observations in the joint judgment of the High Court of Australia in Finch v Telstra Super Pty Ltd [2010] HCA 36 at [66], which were made, admittedly, in connection with a different type of superannuation fund but nevertheless should be applied to the circumstances of these proceedings. Their Honours said, in part:

the duty of a trustee in forming an opinion of the present type is a duty to form a fair and reasonable opinion, or even a duty to form a correct opinion, there is because of the importance of the opinion and its place in the Scheme a high duty on the Trustee to make inquiries for "information, evidence and advice" which the Trustee may consider relevant.

88. I would specifically apply these observations in the context of the formation of an opinion by STC about whether there exists any remunerative occupation, and the nature of that occupation in which it would "otherwise" be reasonable to expect the applicant to engage.

89. I am not aware of the basis upon which the STC determined that there was some remunerative occupation in which it would be reasonable to expect the applicant to engage. This is not important, or indeed significant, because the Court in the circumstances of these proceedings is to determine the matter upon such evidence and information as is adduced by the parties and available to it. I shall examine that evidence and information shortly.

90. During the course of submissions, I raised with the parties whether there was any particular onus or burden to establish that the provisions of s 39(1)(b) did or did not apply. The respondent submitted that the onus fell squarely on the applicant to exclude that there was any remunerative occupation in which it would be reasonable for the STC, in its opinion, to expect him to engage. I respectfully disagree. I considered, albeit obliquely, the question of burden of proof in passing in Gedeon v First State Super Trustee Corporation [2005] NSWIRComm 62. At [32] I said:

[32] The meaning of these words was considered briefly by Hodgson J (as his Honour then was) in the Supreme Court of New South Wales in Chammas v Harwood Nominees Pty Ltd (No 1) (unreported, 14 April 1983, 2081 of 1980). His Honour said, in part:

"and I think those words sufficiently indicate that the relevant employment is full time employment, and that the question is not merely incapacity to engage in some theoretical employment, but actual likelihood of obtaining employment. And the reference to reasonable qualification, I think, appropriately encompasses the requirement that the employment should be something that the member is capable of undertaking".

This reference was cited with approval by McClelland J in Eq in the Supreme Court of New South Wales in Munios v Johnson and Johnson Retirement Benefits Limited (unreported, 5 December 1996, No 3597 of 94). His Honour commented:

"In other words it is in the context of the real world, not that of some theoretical abstraction, that the criterion provided by the definition of total and permanent disablement needs to be applied".

In circumstances where an insured member asserts on the basis of supporting medical and other evidence that he or she is unable to follow any of the occupations described in the definition, then it falls to the party seeking to rebut the claim to adduce evidence designed to demonstrate that there is another occupation to which the claimant is reasonably suited by education, training or experience. In my opinion, it is not sufficient to make a bald assertion, or even to adduce "expert evidence" to the effect that a claimant is able to work as an interpreter, translator or clerk. In the "real world" to which McClelland CJ referred, it is necessary to demonstrate that there are specific occupations available to a claimant which are within his or her education, training or experience. For example, the mere fact that a person is accomplished in two languages may not be sufficient to render that person suitable for employment as a translator or interpreter. There needs to be some evidence about the circumstances of the employment, including the nature and conditions under which work is to be performed and whether there are any specific qualifications or requirements associated with the particular occupation. Mere ability to undertake some or all tasks in an intellectual sense may not determine that there is an ability, both by reference to education, training or experience or by reference to any medical or other condition to perform the work associated with that particular occupation. The work circumstances associated with a "clerical occupation" are so extensive as to not permit any worthwhile discussion in the same vein.

91. It is the second half of the above extract to which I wish to refer, and which I adopt for the purpose of these proceedings.

92. I would imagine that the circumstances in which STC carries out its functions of determining whether a benefit is payable under s 39 are significantly different to those that apply to the exercise of jurisdiction and power by this Court under s 88. In this Court, the applicant appears to assert his claim and the respondent STC, as a party to the proceedings, is entitled to and makes submissions concerning the appeal. Thus there is a proponent and a contradictor and the Court has the benefit of evidence being submitted by both sides and of hearing submissions by both parties.

93. Whether the proceedings before this Court under s 88 are strictly adversarial or are inquisitorial may be open to doubt. The nature of analogous proceedings brought in the District Court of New South Wales was considered by Basten JA in the New South Wales Court of Appeal in Swift . His Honour's observations are contained particularly at [39] to [44].

94. For my part, I do not consider it necessary to consider this aspect of the matter further. I intend proceeding on the basis that the Court is entitled to exercise the functions of the STC in determining the appeal by reason of s 88(3), and that in doing so the Court will consider carefully all of the evidence before it and the submissions of the parties.

95. Having regard to the fiduciary and other obligations that I consider are imposed on STC and that apply to determinations under s 39(1)(b), and having regard to the structure of the sub-clause in the context of a determination as to whether a total and permanent invalidity benefit is payable, the applicant should demonstrate, on a prima facie basis, that he is permanently unable by reason of his, relevantly, mental incapacity to be engaged in any remunerative occupation. Once this is established, it is necessary in my opinion for STC to have available to it some evidence or information which would justify a conclusion that notwithstanding the applicant's mental incapacity he could reasonably be engaged or employed in a remunerative occupation. Such an occupation must be a real occupation, not one that is manufactured, and must exist in the everyday world. It should either be a full time or at least a substantially part-time occupation.

96. Seen in this way, the burden in the context of these proceedings of establishing that there is any such remunerative occupation available to the applicant falls on the respondent. Such an approach is necessary to negative any suggestion that any opinion reached that is adverse to the applicant's interests has a basis that is either uninformed or arbitrary. To do otherwise would be to act in breach of the fiduciary and other duties imposed upon the STC.

The evidence concerning any remunerative occupation within s 39(1)(b)

97. The evidence on this matter consists of the following:

a) That of the applicant to the effect that he is unable to perform any work at all. The applicant said that as at the date of his medical retirement he was unable to perform any work. He had previously indicated a desire to attempt work but had never expressed any conclusion that he would be able to perform that work. His previous intentions had been expressed as a willingness to try to perform such work. There is simply no suggestion that the applicant was untruthful in saying how he felt, feigning symptoms or malingering. The evidence of the applicant is to be taken at face value.
b) The medical evidence and in particular that of Dr Morgan to the effect that the applicant is not able to work at all. I accept the opinion of Dr Morgan that as at May 2006 the applicant was totally and permanently disabled for work, albeit that Dr Morgan did not first see the applicant until November 2007. I accept Dr Morgan's opinion that the applicant's condition was chronic, had been so for some years, and represented the applicant's circumstances as at May 2006.
c) The totality of the remainder of the medical evidence, which is to the effect that the applicant suffers from a chronic psychiatric condition that certainly renders him unfit for his former employment. There is no medical opinion that expresses a contrary view.
d) The evidence of Drs Robertson and Newlyn. I have previously set out and analysed the evidence of both these doctors, the former being qualified by a workers' compensation insurer of the employer and the latter having treated the applicant for some considerable time. I have some difficulty in accepting the evidence of Dr Newlyn given his prima facie change of opinion. I do accept, however, that Dr Newlyn's opinion concerning the applicant's ability to perform work given in July 2006 has to be qualified by the fact that the work that he considered the applicant was fit to perform was not specified, and had to be specifically tailored by the employer for the applicant consistent with his symptoms under the guidance of a rehabilitation provider. The opinion of Dr Robertson is to the same effect and I have set out the relevant extract at [60] above. It is clear that each of these opinions, in that they are directed to any capacity for work, do not touch upon a remunerative occupation in the sense that that expression is used in s 39(1)(b). Their evidence refers to the ability to perform work of a kind to be specifically created by an employer with the assistance of a rehabilitation provider. This is work of a contrived or artificially created position. It is not work that, on the authorities, falls within s 39(1)(b).

98. My analysis of the totality of the evidence leads me to conclude that there is simply no evidence of any particular or, indeed, any general form of remunerative occupation in which, in the opinion of anyone, the applicant could reasonably be expected to engage. On this basis, the purported opinion of STC that there was a capacity of the applicant for employment in a remunerative occupation cannot be sustained on the opinions of Drs Robertson and Newlyn, notwithstanding that STC sought to do so. Those opinions, as expressed in their reports, simply do no justify the conclusion to which STC purported to come.

99. I conclude, therefore, that, subject to the question of leave to which I shall shortly turn, the applicant has satisfied the requirements of s 39(1) of the Act and would otherwise be entitled to receive a total and permanent invalidity benefit.

Leave

100. It will be remembered that by s 88(2) of the Superannuation Administration Act the applicant was required to initiate an appeal from the decision of the STC disputes committee within six months after being notified of that determination. He has failed to do so and seeks that the Court grant him an extension of time in this regard.

101. Before dealing with this matter, it is necessary to refer to some of the relevant history to the making of the claim and the ultimate determination by STC which gave rise to the initiation of the appeal.

102. The application for the payment of a total and permanent invalidity benefit was made by the applicant on 31 March 2006 in anticipation of the last day of service being 1 May 2006.

103. Some two years later, on 3 April 2008, Mr Allen Coles, as senior policy officer of the SAS Trustee Corporation wrote to the applicant. He commenced by referring to "your dispute against the decision of the delegate of the SAS Trustee Corporation (STC) to refuse your application for a total and permanent invalidity (TPI) benefit." It may be assumed, therefore, that some time prior to that date there had been a determination by the delegate adverse to the interests of the applicant. The letter proceeded to refer to a review of the matter by a medical consultant engaged by STC and an agreement "with the opinion of Drs Newlyn and Robertson that you are not permanently incapacitated for any form of employment." The letter indicated that it was "hard to see" a basis to grant a TPI benefit under s 39 of the Act and concluded "Should you now still wish to pursue this matter, please let me know within 28 days of the date of this letter."

104. By letter dated 30 May 2008, Mr Kristofferson, a solicitor then acting for the applicant, wrote to the respondent referring to a number of unsuccessful attempts by the applicant to contact Mr Coles. The letter indicated that the applicant had available a report from Dr Hugh Morgan which supported an application for redetermination. That report and an updated report from Dr Coorey were forwarded by Mr Kristofferson to the respondent by letter dated 16 June 2008.

105. By letter dated 21 August 2008 addressed to Mr Kristofferson under the hand of Mr Coles, the respondent informed the applicant that at a meeting on 20 August 2008 the Disputes Committee of STC determined the dispute by confirming the earlier decision of a delegate to the effect that the applicant was not entitled to a total and permanent invalidity benefit. The letter specifically drew the attention of Mr Kristofferson, and hence the applicant, to s 88(2) of the Act requiring that an appeal be made within 6 months after the appellant is notified of the STC determination or within such further period as is allowed by the Court.

106. There can be no doubt that the applicant's solicitor was aware of the time limit and, as the applicant conceded in evidence, he was aware of that time limit shortly thereafter, having been so informed by Mr Kristofferson.

107. It was the evidence of the applicant that Mr Kristofferson told him that he did not have expertise in this particular area of the law and he was advised to see someone with more experience.

108. The applicant was then referred by the MUA to a firm of solicitors. He was interviewed by a "young lady" solicitor but she did not fill him with confidence that she understood what his problem was about. Furthermore, she asked him to pay the firm $14,000 on account of costs, an amount that he could not afford. This was about October 2008.

109. The applicant did not do anything more for some little time. He was asked why he didn't, being aware that the time limit was approaching. He said,

Well, I knew, but the way that my health was, just the fact, as I say, there was a lot of things going on. There was an illness in the family which resulted in the passing away of the late brother-in-law who I was very close to, so there was other things that I had my mind on than just myself within that scope of time.

110. In about March 2009, Mr Kristofferson contacted the applicant to ask him how his appeal matter was going. Subsequently, he was referred by a former official of the MUA to his current solicitors.

111. The applicant saw Mr David Traynor, solicitor, on 23 March 2009. It may be assumed that he made Mr Traynor aware of the time limitation. He signed an authority to allow Mr Traynor to obtain his file from Mr Kristofferson. Whether or not Mr Traynor was aware of the precise time for the lodging of an appeal, it is clear that the applicant at all times was so aware.

112. Evidence was given in the proceedings by Mr Mark Port, an employed solicitor in Mr Traynor's firm. Part of the applicant's file, including medical reports, was received by Mr Traynor from Mr Kristofferson on 9 April 2009. It appears that Mr Traynor did nothing further until he made a further appointment with the applicant on 2 June 2009 and on that day wrote to Dr Morgan seeking a report. He also sought certain information from the respondent.

113. Dr Morgan delayed sending his report. A follow up letter was forwarded by Mr Traynor to him requesting that report on 16 July 2009. On the same day, Mr Traynor made an FOI request to the respondent. That information was provided by letter dated 17 August 2009. The superannuation appeal was filed on 11 September 2009.

114. My impression of the applicant's evidence was that he was of the opinion that in some way requesting the leave of the Court to extend the time for lodging the appeal was something of a formality and nothing that would provide some form of prima facie bar to the appeal. I have gained this impression from reading the applicant's written evidence and from the manner in which he gave his evidence in the witness box. This does not, of course, excuse the applicant in any way. In any event, it is clear that three sets of solicitors consulted by him were at all times aware, or ought to have been aware, of the time limit.

115. The seminal statement of authority concerning the proper approach to the grant of an extension of time is the judgment of McHugh J in the High Court of Australia in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541. At 552-4, his Honour said,

The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost. Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed. Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period. As the New South Wales Law Reform Commission has pointed out:

" The potential defendant is thus able to make the most productive use of his or her resources and the disruptive effect of unsettled claims on commercial intercourse is thereby avoided. To that extent the public interest is also served."

Even where the cause of action relates to personal injuries, it will be often just as unfair to make the shareholders, ratepayers or taxpayers of today ultimately liable for a wrong of the distant past, as it is to refuse a plaintiff the right to reinstate a spent action arising from that wrong. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.

In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is "to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced." But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension. (Citations omitted).

116. The starting point therefore is that the legislature has imposed a six months' time limit. It may be expected, therefore, that appeals of this kind should be instituted relatively quickly; presumably, all of the relevant material necessary to determine the appeal needed by the appellant and the respondent would already be available. In these proceedings, the appeal was instituted almost seven months after the expiry of the time limit.

117. It was submitted on behalf of the applicant that six months was not a long period of time in which to institute an appeal and that such limitation period should be compared with one of three years or longer. The counter to this is the fact that in fixing a short period of time, the legislature has clearly intended that matters of this kind be dealt with promptly.

118. The respondent was critical of the delay occasioned by the applicant's current solicitors. It was said that in reality there was no need to obtain any additional evidence and the appeal could have been lodged within time, or shortly after the time limit had expired, by those solicitors in anticipation of obtaining any further evidence as might be necessary prior to the hearing. Certainly, the history of these proceedings indicates that there would have been plenty of time in which the applicant or the applicant's solicitors could have secured additional evidence. If the applicant's solicitors were concerned to ensure that there was a good arguable case and required the report of Dr Morgan for this purpose before incurring costs and instituting the proceedings, they could have said so. No such evidence was given.

119. My general impression of the evidence is that the applicant did not apply himself in an appropriate manner to ensure that the appeal was lodged in a timely fashion. There is no suggestion of any kind that despite his psychiatric condition he lacks mental capacity to undertake and pursue matters of this kind. However, even though the applicant possesses the necessary capacity to take steps and make decisions, there is psychiatric evidence that the applicant's depressive condition impacts upon his ability to lead a normal life. The evidence of the applicant is to the same effect. I take this into account in determining the matter.

120. Another matter which I take into account in determining whether leave should be granted under s 88(2) is the fact that the applicant's claim has been on foot for a long time. The initial application was originally lodged on 31 March 2006. It was almost 2 years later before it was finally determined by the respondent. In making this comment, I acknowledge that some delay would have been occasioned by the fact that the applicant sought a re-determination of the matter. Nevertheless, in the absence of any evidence to the contrary, it may be assumed that, for whatever reason, the ultimate determination of the claim took a considerable period of time. In this context, any public policy reason associated with the grant of leave by reference to the need to have claims determined quickly may be given less weight. In these circumstances, also, the impact of the applicant's claim on the resources of the relevant superannuation scheme may be said to be diminished.

121. The respondent conceded that no prejudice attached to it by reason of the delay in the filing of the appeal. The applicant advanced this as a positive reason why leave should be granted. In my opinion, it should be seen more as the removal of an impediment to the grant of leave.

122. I have found the determination of this matter much more difficult than the determination as to whether or not the appeal should succeed on its merits, assuming the grant of leave. I should state, so that the situation is clear, that in determining whether to grant to leave I do not take into account the fact that, in my opinion, the appeal should otherwise succeed. On the authority of Brisbane South Regional Health Authority , whether or not the applicant has a good cause of action is irrelevant to the exercise of the discretion to extend time.

123. As I have indicated, the matter is finely balanced. Despite the factors that would militate against the grant of leave, I am persuaded to extend the time for the filing of the appeal for two principal reasons. The first is the impact that the applicant's psychiatric condition has upon his ability to function on a day-to-day basis and, secondly, the totality of the time taken between the lodging of the initial claim by the applicant and its ultimate rejection. A long period of time has elapsed and it would be inequitable in these circumstances to hold the applicant in a rigid manner to a six months' time limit.

124. For these reasons, I propose to extend time.

Costs

125. The parties agree that costs should follow the event.

Orders

126. Having regard to the reasons that I have given, I make the following orders:

1) The time during which the applicant must make the appeal, the subject of these proceedings, is extended to and including 11 September 2009.
2) I find that the applicant is entitled to be paid a total and permanent invalidity benefit under s 39 of the State Authorities Superannuation Act , being satisfied that his cessation of employment with NSW Maritime was due, directly or indirectly, to a permanent mental incapacity and that when he ceased to be employed by NSW Maritime, he was permanently unable, by reason of that mental incapacity, to be engaged, or to be employed in any remunerative occupation in which, in the opinion of the Court, it would otherwise be reasonable to expect him to engage. That mental incapacity is constituted by a major depressive disorder, which is moderately severe and chronic, and an adjustment disorder with mixed anxiety and depressed mood, also chronic.
3) The appeal of the applicant is upheld.
4) The respondent is to pay the applicant's costs of the proceedings in an amount assessed under the Legal Profession Act in default of agreement.

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