Bigg v SAS Trustee Corporation [2016] NSWCA 236

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bigg v SAS Trustee Corporation [2016] NSWCA 236 Hearing dates: 17 August 2016 Decision date: 01 September 2016 Before: Beazley ACJ; Basten JA; Macfarlan JA Decision: (1) Leave to appeal refused.

(2) The applicant to pay the respondent's costs. Catchwords: SUPERANNUATION – police superannuation allowances under the Police Regulation (Superannuation) Act 1906 (NSW) – superannuation allowances where member of police hurt on duty – requirement that member have "resigned or retired" under s 10B – whether "resigned or retired" and "resignation or retirement" encompass unfair dismissal

APPEAL – application for leave to appeal – Industrial Relations Act 1996 (NSW), s 403B – Court to grant leave if, in its opinion, matter is of such importance that, in the public interest, leave should be granted – relevant principles where duty not engaged

WORDS AND PHRASES – "resigned or retired" – "resignation or retirement" – whether such words, as used in the Police Regulation (Superannuation) Act 1906 (NSW), s 10B, encompass unfair dismissal Legislation Cited: Industrial Relations Act 1991 (NSW) Industrial Relations Act 1996 (NSW) Police Regulation (Superannuation) Act 1906 (NSW), s 10B(2) Police Service Act 1990 (NSW), s 181B Police Service Amendment (NSW Police) Act 2002 (NSW) Police Service Amendment Act 1995 (NSW) Superannuation Administration Act 1996 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Bigg v New South Wales Police Service (1998) 80 IR 434 Bigg v New Wales Police Service (1997) 72 IR 330 Carolan v AMF Bowling Pty Limited [1995] NSWCA 69 Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Category: Principal judgment Parties: Malcolm Lorne Bigg (Applicant) SAS Trustee Corporation (Respondent) Representation: Counsel: In person (Applicant) T Ower (Respondent)

Solicitors: SAS Trustee Corporation (Respondent) File Number(s): 2016/91861 Decision under appeal Court or tribunal: Industrial Court of NSW Citation: Bigg v SAS Trustee Corporation [2016] NSWIC 2 Date of Decision: 15 February 2016 Before: Schmidt J File Number(s): IRC 467/2015

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Headnote

[This headnote is not to be read as part of the judgment] The applicant was dismissed from the New South Wales Police (the NSW Police) on 25 February 1996 pursuant to s 181B of the then Police Service Act 1990 (NSW). That section provided for the dismissal of a police officer where the Police Commissioner formed the opinion, based on information arising out of the Police Royal Commission, that the police officer had engaged in corrupt or criminal conduct and was no longer a fit and proper person. An initial challenge to the dismissal in the Industrial Relations Commission was unsuccessful. However, the applicant succeeded on appeal to the Full Bench of the Industrial Relations Commission, the Full Bench finding that the dismissal was unjust and ordering the NSW Police to pay compensation to the applicant. On 4 August 2014 the applicant made an application for a "Medical Discharge Benefit" pursuant to the Police Regulation (Superannuation) Act 1906 (NSW). By letter dated 17 September 2014, the respondent informed the applicant of its determination that he was not eligible for a Medical Discharge Benefit as he did not "resign" or "retire" from the NSW Police within the meaning of s 10B(2) of the Act. That determination was affirmed by the respondent on 6 May 2015. Schmidt J, sitting in the Industrial Court of New South Wales, dismissed the applicant's appeal from the decision of the respondent on 6 May 2015. The applicant sought leave to appeal from the decision of Schmidt J.

The Court: (1) Section 10B of the Police Regulation (Superannuation) Act 1906 (NSW) governs the circumstances in which a former police officer who has "retired or resigned" may be entitled to a superannuation benefit or gratuity under s 10. [30] (2) The words "resign", "retire", and "resignation or retirement" in s 10B bear their ordinary meaning. [34] (3) A person "resigns" from employment when he or she advises the employer that they will no longer work in that employment from a particular date. A person "retires" from employment either because they have reached a compulsory retiring age, or because they have made a decision to no longer be in employment. [34] (4) An employee is "dismissed" when the employer brings the employment relationship to an end, often because of some form of unsatisfactory conduct by the employee. [34] (5) Section 10B(2) cannot permissibly be construed to operate such that a person who has been unjustly dismissed falls within its terms. [35] (6) Section 403B(1) of the Industrial Relations Act 1996 (NSW) provides that the Court is to grant leave if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. [39] (7) Where the Court is not so required to grant leave, the Court will be guided in determining whether to grant leave to appeal by established principle in respect of the grant of leave. [22]-[23], [38]-[40]

Judgment 1. THE COURT: The applicant, a former police officer, brought an application seeking leave to appeal from a judgment of Schmidt J sitting in the Industrial Court of New South Wales: Bigg v SAS Trustee Corporation [2016] NSWIC 2. In that decision, her Honour dismissed the applicant's appeal from the decision of the respondent of 6 May 2015 rejecting his application under the Police Regulation (Superannuation) Act 1906 (NSW), s 10B(2) seeking a certification of incapacity. The purpose of that application was to enable the applicant to apply for superannuation benefits under that Act.

Factual background 1. The factual background can be stated shortly. The applicant was dismissed from the New South Wales Police (the NSW Police) on 25 February 1996 pursuant to the provisions of s 181B of the then Police Service Act 1990 (NSW). That section provided for the dismissal of a police officer, by order in writing, where the Police Commissioner formed the opinion, based on information arising out of the Police Royal Commission, that the police officer had engaged in corrupt or criminal conduct and was no longer a fit and proper person to hold a position in the NSW Police. 2. The applicant appealed against his dismissal to the Industrial Relations Commission pursuant to the Industrial Relations Act 1991 (NSW), seeking reinstatement as a police officer pursuant to s 250 of that Act. That application was dismissed: Bigg v New Wales Police Service (1997) 72 IR 330. The Full Bench of the Industrial Relations Commission upheld the applicant's appeal, holding that the dismissal was unjust because the Commissioner had not followed the procedure specified in the Police Service Act, s 181B. That omission was identified as failing to have regard to relevant material, including evidence given by the applicant before the Police Royal Commission: Bigg v New South Wales Police Service (1998) 80 IR 434, esp at 460. Nonetheless, the Full Bench rejected the applicant's claim for reinstatement on the basis that the employment relationship could not be re-established. The Full Bench ordered the NSW Police to pay compensation to the applicant in an amount equal to his remuneration during the period of six months immediately before being dismissed. 3. On 4 August 2014 the applicant made an application for a "Medical Discharge Benefit" pursuant to the Police Regulation (Superannuation) Act. By letter dated 17 September 2014, the respondent informed the applicant that it had determined that he was not eligible for a Medical Discharge Benefit as he did not "resign" or "retire" from the NSW Police within the meaning of s 10B(2) of that Act. 4. The applicant disputed that determination: see Superannuation Administration Act 1996 (NSW), s 67. On 6 May 2015, the respondent confirmed the determination that the applicant was not eligible to apply for a s 10B(2) certificate. The applicant's appeal against the determination to the Industrial Court was dismissed by Schmidt J on 15 February 2016. It is the dismissal of that appeal by her Honour in respect of which the applicant sought leave to appeal to this Court. The respondent opposed the grant of leave. 5. The matter proceeded before this Court by way of a concurrent hearing of the summons seeking leave to appeal and if leave be granted, the appeal. For the reasons we give below, leave to appeal is refused.

Statutory scheme 1. As the question in issue is essentially one of statutory construction, it is convenient at this point to refer to the statutory scheme and where necessary, to set out the provisions of the relevant legislation in full.

Police Act 1990 (NSW) 1. The commencing point is the legislation under which the applicant was dismissed. The Police Service Amendment Act 1995 (NSW) introduced s 181B(1) into the then Police Service Act 1990, which Act was subsequently renamed the Police Act by the Police Service Amendment (NSW Police) Act 2002 (NSW). Section 181B provided that the Commissioner, by order in writing, may "dismiss a police officer" in the circumstances specified in that section, namely, where the Commissioner had formed the opinion, based on information arising out of the Police Royal Commission, that the officer: "(a) has engaged in corrupt conduct (or any other conduct constituting an indictable offence), and (b) is no longer a fit and proper person to hold a position in the Police Service." 1. Dismissal took effect from the date the order was made: s 181B(2). Notice of the proposed dismissal was required to be given and the police officer was to be given an opportunity to make written submissions: s 181B(3)(a) and (b). The Police Commissioner was further required to take those written submissions into account in making a decision as to dismissal: s 181B(3)(c). 2. Reference should also be made to s 181C. That section, which was also introduced by the Police Service Amendment Act 1995, provided that the Commissioner was required to accept the resignation of a police officer from the Police Service if: "(a) the officer tenders his or her resignation, and (b) the Police Royal Commission has recommended that the officer be allowed to resign." 1. The applicant at no time tendered his resignation.

Police Regulation (Superannuation) Act 1906 (NSW) 1. Pursuant to the Police Regulation (Superannuation) Act, s 3, a "Police Superannuation Fund" was established. Section 10 provides for a superannuation allowance where a member of the police force was hurt on duty. A member of the police force was entitled to access a superannuation allowance under this provision, if the police officer was a "disabled member of the police force", a term defined in s 10(1) as follows: "(b) a former member of the police force who resigned or retired and who, according to a certificate given pursuant to section 10B (2) at any time after the member's resignation or retirement, was incapable, from an 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 at the time of the member's resignation or retirement …" (emphasis added) where the infirmity was caused by being hurt on duty as determined under s 10B(3). 1. "Retired" is defined in s 10(1) to include "discharged as referred to in section 7 or 14". Those sections are not presently relevant. 2. Section 10B bears the heading "Medical examination of disabled member and a determination of whether hurt on duty". Section 10B(2) provides: "(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) the former member notified the Commissioner of Police before the member's resignation or retirement and within 6 months of receiving the injury which has caused the member's infirmity of body or mind, of that injury, and (b) if the regulations so require, the notification was in the prescribed form, and (c) STC (having regard to medical advice on the condition and fitness for employment of the member) has certified that the former member was incapable, from that 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 at the time of the member's resignation or retirement." 1. The applicant, in his August 2014 application, was seeking certification under this subsection. 2. Section 10B(3) provides that if the former member is "duly certified under subsection … (2)", the Commissioner of Police is to make a determination as to whether the officer was "hurt on duty when he or she was a member of the police force".

Superannuation Administration Act 1996 (NSW) 1. The Superannuation Administration Act established the SAS Trustee Corporation as the trustee for the State defined benefit public sector superannuation schemes. The SAS Trustee Corporation (STC) was the trustee of the Police Superannuation Fund. 2. Section 67 provides that a dispute concerning a relevant superannuation scheme is to be determined by the STC or an STC disputes committee. 3. Section 88(1) provides that: "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 …" 1. Section 67(5) provides that s 67: "… 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 …" 1. Section 21 of the Police Regulation (Superannuation) Act provides for a right of appeal to the District Court from "a decision made by STC on a matter that arises under this Act by reason of a member of the police force being hurt on duty". The STC has many such powers, but the decision in this case involved a preliminary issue, not dependent on the applicant being hurt on duty. It may, therefore, be accepted that this was not a dispute to which s 21 of the Police Regulation (Superannuation) Act applied.

Industrial Relations Act 1996 (NSW) 1. Chapter 7A, s 403A, of the Industrial Relations Act 1996 makes provision for appeals to the Supreme Court against decisions of the Commission in Court Session (identified in s 151A as "the Industrial Court of New South Wales"). Section 403B(1) provides that an appeal to the Supreme Court under Ch 7A may only be made with the leave of the Supreme Court. Section 403B(2) provides: "The Supreme Court is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted." 1. This provision could be seen as circular; otherwise it implies that there is an obligation to grant leave if a matter of substantial public importance is raised. More importantly, there is no reason to read it as impliedly restricting the power to grant leave to such cases. General principles developed in relation to unfettered statutory powers to grant leave will apply in cases where the duty is not engaged.

Supreme Court Act 1970 (NSW) 1. Under s 48(2)(f) of the Supreme Court Act 1970 (NSW), those appeals are assigned to the Court of Appeal.

Primary judge's determination 1. Although the applicant raised a number of arguments before the primary judge, her Honour, at [267], identified as the critical question of statutory construction, whether or not a person whom the Commission had determined had been unjustly dismissed was, for the purposes of s 10B, "a former member of the police force who resigned or retired". Her Honour noted, at [27], that the applicant "did not claim that he had resigned". Rather, his argument was that a police officer whose dismissal had been held to be unjust ought to be entitled to the superannuation benefits provided by the Act. 2. Her Honour concluded, at [46], that the finding that the applicant's dismissal had been unjust did not restore him to a position in the police force. Her Honour pointed out that the Full Bench of the Industrial Relations Commission had declined to intervene in respect of the dismissal by ordering either the applicant's reinstatement or his re-employment. Rather, the Full Bench had ordered compensation pursuant to the Industrial Relations Act 1996, s 250(3). 3. Her Honour said, at [49], that the fact that the applicant's application for reinstatement had been rejected did not provide a basis upon which it could be concluded that his dismissal amounted to a "resignation or retirement". Contrary to the case advanced by the applicant, her Honour held that it was only police officers who resigned or retired from their positions with which s 10B(2) is concerned. Her Honour concluded that the applicant's dismissal had brought his position in the police force to an end.

Issues on the summons for leave to appeal 1. The applicant identified eight questions that he said were raised by the appeal, if leave were to be granted. It is apparent from the applicant's articulation of those questions and from his written submissions that the central question for determination is the proper construction and operation of s 10B(2). Accordingly, we do not consider it necessary to determine each question formulated by the applicant, as the relevant question of statutory construction is determinative of all the issues raised. 2. The applicant's principal contention was that a former member of the police force whose dismissal was later found to be unjust may nonetheless be entitled to the superannuation benefits provided by the Act, if the former member is certified by the STC under s 10B(2)(c) to be incapable of exercising the functions of a police officer at the time of the member's "resignation or retirement". This was essentially the same contention as was advanced before the primary judge. 3. Section 10B governs the circumstances in which a former police officer who has "retired or resigned" may be entitled to a superannuation benefit or gratuity under s 10. Section 10B(2), which is in issue here, is cast in negative form, namely, that the member is not entitled to benefits under s 10 unless the matters in paras (a), (b) if applicable, and (c) are satisfied. Paragraph (c) requires that the STC must certify that the former member was incapable of exercising the functions of a police officer "at the time of the member's resignation or retirement". 4. The principles of statutory construction are well settled. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 the High Court (Hayne, Heydon, Crennan and Kiefel JJ) stated, at [47]: "This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy." (footnotes omitted) 1. In Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56 the High Court, at [23], reiterated what was said in Alcan (NT) Alumina and further explained, at [24]: "The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, '[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute' (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision 'by reference to the language of the instrument viewed as a whole', and 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'." (footnotes omitted) 1. As the High Court also explained, at [25], the purpose of a statute resides in "its text and structure". 2. The words "resign", "retire", and "resignation or retirement" in s 10B bear their ordinary meaning. A person "resigns" from employment when he or she advises the employer that they will no longer work in that employment from a particular date. A person "retires" from employment either because they have reached a compulsory retiring age, or because they have made a decision to no longer be in employment. In either case, the concepts of "resignation" and "retirement" are focussed on the conduct of the employee. Dismissal from employment is quite different. An employee is "dismissed" when the employer brings the employment relationship to an end, often because of some form of unsatisfactory conduct by the employee. 3. The Court does not understand the applicant to have argued to the contrary of this understanding of the words "resign" or "retire". His point was that it could not have been the intention of Parliament that s 10B(2) operates such that a person who was found to have been unjustly dismissed and who was so prevented from resigning did not fall within its terms. For the reasons we have given, we do not accept that as a possible construction of the section. 4. The applicant also argued that upon the proper construction of the section, a dismissal that has been held to be unjust did not fall within s 181B. That construction must also be rejected. Section 181B not only permits the Commissioner of Police to dismiss a person in the circumstances specified in the section, it provides, in subs (2) that the dismissal is to take effect when the order is made. The right to challenge the dismissal under the Act and the remedies available where the dismissal is found to have been unjust demonstrate that the person remains dismissed, unless and until the person was either "reinstated" or "re-employed" under s 250. If neither of those forms of relief was ordered, the person remained dismissed. This is so notwithstanding that the person may have been awarded compensation under s 250. 5. There are cases where, for particular purposes, a resignation which was not truly voluntary has been treated as a constructive dismissal. There are no cases of which the Court is aware of a dismissal being treated as a constructive resignation. If there were, the appropriateness of such a characterisation would depend on the statutory context. In the present case, the statute does not allow of such an approach.

Leave to appeal 1. As we have stated, the applicant required leave to appeal. This Court has repeatedly applied the principles stated in Carolan v AMF Bowling Pty Limited [1995] NSWCA 69 as to when leave to appeal should be granted. In that case, Kirby P stated, at 3, that it will ordinarily only be appropriate to grant leave to appeal in matters: "… which involve issues of principle, questions of general public importance or an injustice which is reasonably clear, that is to say goes beyond merely being arguable." 1. Sheller JA, at 2, considered it necessary that an applicant for leave to appeal demonstrate something more than that the primary judge was arguably wrong. The amount in contention on a proposed appeal may also be a relevant consideration: see Cole JA in Carolan v AMF Bowling at 3. Authorities in this Court that have applied these principles include Jaycar Pty Ltd v Lombardo [2011] NSWCA 284; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164. 2. Section 403B(1) provides that the Court is to grant leave if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. This is not a case in which the Court is required to grant leave under s 403B(1). Accepting that the section does not otherwise circumscribe when leave may or may not be granted, the Court will continue to be guided, in the exercise of its discretion as to whether to grant leave, by the principles that have been developed in the case law to which we have referred. 3. Public interest is a term of wide import, and protean in nature. In circumstances where the matter involves the construction of a statutory provision which is clear on its terms, we do not see that any question of public interest arises. Nor is the applicant's case more than arguable. 4. The order of the Court is that leave to appeal is refused. The applicant is to pay the respondent's costs.

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Amendments 06 September 2016 - Minor typographical errors corrected at [5], [9], [12] and [19] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 September 2016