Wilson v SAS Trustee Corporation (No 2) [2021] NSWDC 840

District Court New South Wales

Medium Neutral Citation: Wilson v SAS Trustee Corporation (No 2) [2021] NSWDC 840 Hearing dates: 18-22 October 2021 Date of orders: 20 October 2021 Decision date: 20 October 2021 Jurisdiction: Civil Before: Neilson DCJ Decision: Application for disqualification is refused. Legislation Cited: Police Regulation (Superannuation) Act 1906 Cases Cited: Calman v Commissioner of Police [1999] HCA 60 Texts Cited: Nil. Category: Procedural rulings Parties: Plaintiff – Steven Wilson Defendant – SAS Trustee Corporation Representation: Counsel: Plaintiff – J. Morris SC w/ E. O'Neill Defendant – T. Ower Solicitors: Plaintiff – S. Gray & O. O'Donovan (Cardillo Gray Partners) Defendant – L. Doyle (SAS Trustee Corporation) File Number(s): RJ00258/2019 RJ00171/2020 Publication restriction: Nil.

Judgment 1. HIS HONOUR: This is an application that I disqualify myself. The circumstances in which the application is made are these. The hearing of the oral evidence in this case commenced yesterday, 19 October 2021. The hearing of the case commenced on Monday, 18 October 2021 after I had conducted a call over of the Special Statutory Compensation List. The parties opened the proceedings by tendering voluminous documentation, exhibits A, B, C, D, 1, and 2. It was lunch time by that stage, and I suggested to the parties that it would take me some considerable time to read the documentation with which they agreed, and I then stood the matter over part heard to yesterday morning at 10. I, in fact, worked in chambers until about 7.45pm on Monday and until after 8pm last night reading documents that have been tendered. 2. Yesterday in his oral evidence which commenced to be heard at 10.25, the plaintiff at p 36 line 9 commenced his evidence about an event that happened in 1995 and continued through to 1996. The evidence concerned his taking a complaint by a woman who was the victim of domestic violence including sexual assault and for whom the plaintiff arranged an AVO to be taken out at the Blacktown Local Court. According to the plaintiff's evidence, he also tried to organise for her to spend the night in a refuge, but the lady refused to attend a refuge because of her desire to stay with her parents, because of cultural mores. She believed it was necessary for her to stay at home and look after her elderly parents. That evening, the alleged perpetrator of the domestic violence attended upon the complainant's premises and murdered her by disembowelling her. 3. The plaintiff gave evidence of having a sense of guilt, a sense of major guilt because of his involvement in that case. He believed that he had not done enough to protect her and said that as far as he was concerned, he should have forcefully taken her to the women's refuge rather than permitting her to stay at home. He also recalled discussing this event later when he was attending a conference for Peer Support Officers at Goulburn approximately 12 months later. 4. I interrupted the evidence that was being given to refer the plaintiff back to the notes compiled by a police psychologist in November 1996 and January 1997. At p 39 line 26, I summed up the position painted to me by the psychologist notes in this fashion: "Q. According to the psychologist notes, you only developed problems about this murder about a month before you were due to give evidence at the trial and once he pleaded guilty, your problems appear to have gone away within a couple of months? A. Your Honour, the problems - the issues in relation to that matter have never gone away. They've always been with me." I point out, at this time, that I summed up the purport of the notes by saying that the plaintiff's problems had appeared to have gone away, not that they had gone away. The plaintiff went on to say that the issues remained with him. The transcript continued in this fashion: "Q. Well, we'll see about that, right? A. Yes, your Honour. Q. It will all depend how many - whether you told everyone about that ever since then or whether there's been a complete silence about it." I then invited Mr Morris to continue his examination in chief. 1. The point which I was seeking to make, perhaps inaccurately, was whether the problems did continue to afflict the plaintiff was a question of whether he mentioned the problems later when he was seeing people to whom one would expect him to make a complaint about the stressor alleged. Clearly, that is likely to be a medical expert. It is to be noted that I also referred to there being "a complete silence", not that there had to be a continuing repetitive complaint about the same stressor. 2. The plaintiff through his counsel asks me to disqualify myself on the basis that this shows some form of apprehended bias that I would not accept the plaintiff as being truthful or honest unless he could adduce evidence that, ever since 8 January 1997, when the relevant police psychologist's notes conclude with the notation "NFA", which I interpret as "no further action", and the current time, there was mention to medical practitioners about this issue or other issues either individually or comprehensively, for example referring to various traumata to which he was exposed over many years whilst in the police service. The plaintiff's lawyers are concerned that they cannot adduce evidence of relevant complaints to medical practitioners between the date of the plaintiff's medical discharge on 6 April 2000 and a complaint in late 2009 about psychiatric problems which appear to have an onset late in 2009. 3. However, I do not know a large number of things. Firstly, there is no evidence that between 2000 and 2009, the plaintiff saw any medical practitioner at all about anything. If questions be asked of him about that, one must see what he says; that for example, he was moving from job to job or from place to place, and when he saw a medical practitioner if he had some acute illness such as influenza and he only complained about that particular acute illness. There is some medical evidence tendered to suggest, in the defendant's case, that the plaintiff's alleged PTSD has its genesis in his work with the NSW Police but was subsyndromal at the time of his medical discharge, but was made symptomatic by a non-hurt on duty stressor which means, according to the decision of the High Court of Australia in Calman v Commissioner of Police [1999] HCA 60, that it is likely that it would remain a "hurt on duty injury", but the problem then becomes how the Police Regulation (Superannuation) Act 1906 operates when dealing with questions of pension entitlements. 4. The medical evidence to which I have just referred, that of Dr Allan, was not medical evidence that I had read before the plaintiff commenced giving his evidence. It was only read by me last night. As I said, I was reading last night until after 8pm. I have not brought a biased attitude to this case. My mind remains open and always remains open until the evidence has been concluded and addresses have been conducted. I must say that I am moved by the submission put to me by the defendant that it would be a shame to lose the work that has been done thus far to get this rather difficult case before the Court and up and running. The difficulty in this case is one of law rather than of fact as far as I can see, as currently advised. In the circumstances, the application for disqualification is refused.