Whittaker v Commissioner of Police [2001] NSWCC 186

Reported Decision : (2002) 23 NSWCCR 193

Compensation Court of New South Wales

CITATION : Whittaker v Commissioner of Police [2001] NSWCC 186 PARTIES : Aaron Whittaker Commissioner of Police MATTER NUMBER(S) : 7027 of 1998 JUDGMENT OF: Geraghty J CATCHWORDS: Proceedings to Obtain Compensation :- Hurt on Duty s 12D LEGISLATION CITED: s 21 (1)(a) s 12D(4)(a) CASES CITED: DATES OF HEARING: 10/12/2001 EX TEMPORE JUDGMENT DATE : 12/10/2001

FOR APPLICANT: Mr R Keller instructed by McCrohon Bergseng LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr I Kostopoulos instructed by Michael North Holmes

JUDGMENT: 1. Former Senior Constable Aaron Whittaker comes before the Court today at the commencement of a five day hearing, to appeal the decision of the Deputy Commissioner dated 10 July 1998 to the effect that his certified anxiety/post traumatic stress disorder was not caused by his being hurt on duty. The Commissioner filed an answer (dated 7 December 2001) placing in issue a range of matters. Today, on the first day of hearing, an application is made that I find that there is no judicial issue to be determined by the Court since the decision of 10 July 1998 is a nullity. This application is based on a coordinated reading of s 21 (which deals with the power of this Court), s 10 (dealing with the granting of a superannuation allowance where a member or ex member is hurt on duty), and s 12D (dealing with gratuities to be paid, such as medical expenses and lump sums for losses or impairments, et cetera, and in what circumstances the gratuities are to be paid). 2. Exhibit A is an agreed chronology of facts and Exhibit B is a series of decisions of the delegate of the Commissioner, the first dated 20 February 1997 (dealing with an injury on 13 January 1994, an injury which is not the subject of these proceedings); a decision dated 23 June 1998 which found that the injury sustained on 13 January 1994 was an injury caused by the member being hurt on duty (that injury being to the lumbar spine and left leg); and the third document is the decision of the Commissioner, the subject of these proceedings, which is an appeal against his finding that an injury on 4 November 1994 was not hurt on duty. 3. On 13 January 1994, Mr Whittaker sustained an injury to his back. On 4 November that same year, he is alleged to have suffered, in the course of his duty as a police officer, a stress incident which caused anxiety/post traumatic stress disorder. He continued to work until 6 December 1995. On 19 March 1996, he made a claim that he had been hurt on duty as a result of a stress incident in November 1994. He resigned on 25 November 1996. 4. On 20 February 1997, the Commissioner made a decision, pursuant to s 12D(4)(a), that Mr Whittaker was indeed hurt on duty when he sustained an injury to his back. 5. The second certificate (of 23 June 1998) based the application for an annual superannuation allowance on the findings that had been made previously that his injury was in fact hurt on duty. A month later, on 10 July 1998, the Commissioner, through his delegate, made a further finding, this time in respect of the injury 4 November 1994, that when Mr Whittaker sustained that injury of anxiety and post traumatic stress disorder, that injury was not caused by his being hurt on duty. This decision is the subject of this appeal. 6. S 21 of the Act provides that a person who considers himself aggrieved by a decision of the Board or a decision of the Commissioner of Police, has an appeal to this Court from that decision in certain circumstances. He must appeal within a period of six months after being notified of the decision of the Board or the Commissioner. 7. S 21(1)(a) provides for an appeal from a decision made by the Board. In this case no decision has been made by the Board. (b) provides for an appeal from a decision made by the Commissioner of Police (such as in this case), which was made under s 12D(4)(a). The certificate itself states that the decision has to be made pursuant to that section. The section provides that where a member or former member of the Police Force who is not entitled to an annual superannuation allowance under s 10 claims a gratuity under s 12D, the Commissioner of Police shall at the request of the Board decide whether or not the injury to which the claim relates was caused by the member being hurt on duty, or the former member having been hurt on duty when he was a member of the Police Force. 8. Mr Whittaker alleges that as a former police officer he was hurt on duty when he was a member of the Police Force. It is clear that this matter has been considered and a decision made by the Commissioner, namely, that he was not hurt on duty. In normal circumstances, this would empower this Court to hear the matter by way of an appeal or reconsideration. However, the section specifically relates only to a member or former member who is not entitled to an annual superannuation pension under s 10. Pursuant to a decision of the Commissioner on 23 June 1998, Mr Whittaker is entitled to such an annual superannuation pension, and therefore he is not a party referred to in (4) of s 12D, and therefore he is not a person aggrieved by a valid decision of the Commissioner of Police under s 12D(4)(a). 9. It is clear that the Commissioner of Police has made a mistake, presuming that the appellant in this case was a person who is not entitled to an annual superannuation allowance. His mistake is understandable because the relevant decision of the Commissioner was made on 23 June, and the further decision was made on 10 July 1998. It would seem that the delegate of the Commissioner was not communicating with the delegate of the Commissioner. 10. So, in making the second decision, the delegate did not know that an earlier decision had been made entitling Mr Whittaker to an annual superannuation allowance. 11. There appears to be another mechanism by which this matter can proceed, but it does not involve this Court. It is a pity to waste five days of hearing but it is inevitable that s 12D(4)(a) is not a section which applies to this appellant. 12. I dismiss the proceedings. 13. I order each party to pay its own costs. Mr R Keller instructed by McCrohon Bergseng appeared for the applicant. Mr I Kostopoulos instructed by Michael North Holmes appeared for the respondent.