Tysoe v Commissioner of Police [2002] NSWCC 15

Reported Decision : (2002) 23 NSWCCR 417

Compensation Court of New South Wales

CITATION : Tysoe v Commissioner of Police [2002] NSWCC 15 Douglas Tysoe PARTIES : v Commissioner of Police MATTER NUMBER(S) : 1923 of 1998 JUDGMENT OF: Neilson J at 1 Entitlements & Liability :- Police Regulation (Superannuaion) Act 1906 s 12D. Former member of police service in receipt of a superannuation allowance under s 10 for "chronic anxiety state". CATCHWORDS: Now claims gratuities under s 12D (equivalent to s 66 and s 67 of WCA 1987) for impairment of back and neck. Impairments not alleged to be related to chronic anxiety state. Whether former member can claim such gratuities. Held: Former member can claim such gratuities. Words of qualification need to read into s 12D to make it work effectively and prevent glaring anomally. LEGISLATION CITED: Williams v Commissioner of Police (1994) 10 NSWCCR 350 cons; CASES CITED: Whittaker v Commissioner of Police (unreported, Geraghty J, 10 December 2001, Matter No 7027/98) not followed; Lembcke v Commissioner of Police (unreported, Ashford J, 5 April 2002) not followed. DATES OF HEARING: 17/04/02 EX TEMPORE JUDGMENT DATE : 04/17/2002

FOR APPLICANT: Mr B Kelly instructed by Oates & Smith appeared for the applicant. LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr Barham instructed by the Commissioner of Police appeared for the respondent.

JUDGMENT: 1. The substantive matter before me is an appeal under the Police Regulation (Superannuation) Act 1906, by a former Sergeant of Police. 2. The respondent Commissioner of Police has moved the Court that the application be dismissed and has sought an order for costs against the appellant. I have agreed to hear that motion as a preliminary matter. 3. The current proceedings were commenced by an application for determination filed on 13 February 1998. That application purported to be an appeal against the decision of the Commissioner of Police dated 2 April 1997. On 2 April 1997, the Commissioner determined that three injuries sustained by former Sergeant Tysoe were caused by his having been hurt on duty. The dates of injury were 21 September 1973, 14 June 1978 and 16 March 1983. According to the Commissioner's decision they were the dates of injuries relied upon by the appellant in his application to the Commissioner which was dated 19 December 1996. 4. Under the Police Regulation (Superannuation) Act 1906, an appeal must be instituted within six months of the notification of decision. According to the application for determination, the decision was notified to the appellant on 3 April 1997. As I have said, the initiating process was filed on 13 February 1998, so the application was obviously out of time. Furthermore, it would appear that there was no decision that could be appealed in any event. According to the application for determination, the worker was relying not only on the three injuries which had been certified as "HOD" and to which the appellant's application of 19 December 1996 related, but also to injuries on 8 April 1974 and during the period from 9 July 1987 to 10 May 1990. In other words, the appellant was seeking to appeal from a decision of the Commissioner of Police which decision had never been made. This led to the application being adjourned from time to time until a further decision was made by the Commissioner of Police. 5. In an amended application for determination filed on 7 September 2001 the appellant sought to appeal from a decision of the Commissioner of Police of 29 August 2001. A copy of that decision is annexed to the amended application for determination. That again certifies the injuries of 21 September 1973, 14 June 1978 and 16 March 1983 as being "HOD". The certificate continues: Further, in terms of s 12D(4) paragraph (a) of Police Regulation (Superannuation) Act 1906 (as amended), I have decided that the nature and conditions of his employment between 9 July 1987 and 10 May 1990 were not hurt on duty. 6. The decision not to categorise the "nature and conditions of employment", whatever that might mean, between 9 July 1987 and 10 May 1990 as not being hurt on duty would appear to grant a right of appeal to this Court, because the Commissioner purported to make a decision under s 12D(4) par (a). 7. The significance, for the legally uninitiated, is, of course, that a gratuity equivalent to a benefit under s 66 of the Workers Compensation Act 1987 would be much greater in value than any gratuity payable in respect of an injury occurring before 30 June 1987, if any such gratuity is payable at all, which one of the decisions of the Commissioner of Police seems to indicate. 8. In the amended application for determination filed on 7 September 2001, the appellant again relies on an injury on 8 April 1974 which has never been, on the documentation before me, the subject of any decision by the Commissioner of Police and if the matter is to proceed, must be struck out of the application for determination or require a further adjournment so that the Commissioner can make a decision on that injury. 9. Leaving aside all the technical problems, it appears clear that there was a decision of the Commissioner of Police purportedly made under s 12D(4) par (a) of Police Regulation Superannuation Act 1906 pursuant to which an appeal lies pursuant to this Court pursuant to s 21 of the same statute. 10. The Commissioner of Police does not take issue with any of these technical irregularities, but argues that the appellant is not entitled to bring this appeal because he is in receipt of an annual superannuation allowance. 11. It is clear from the amended application for determination of 7 September 2001 and also from the initiating process of 13 February 1998 that the appellant is seeking gratuities in respect of the impairment of his back and the impairment of his neck. Those of course were not compensable conditions under the Workers Compensation Act 1926, hence the necessity, one might point out, for the appellant to prove that he sustained some injury after 30 June 1987. 12. It is clear that the appellant is in receipt of a superannuation allowance under s 10(1A)of the Police Regulation (Superannuation) Act 1906. 13. On 26 April 1990, the Police Superannuation Advisory Committee certified that the then Sergeant Tysoe was incapable of discharging the duties of his office as a sergeant of police because of a "chronic anxiety state". It would appear that he left the Service shortly thereafter and appears to have been in receipt of a superannuation allowance ever since. The significant fact is that the allowance is in respect of a psychiatric condition. The appellant claims gratuities for the impairment of his back and the impairment of his neck. There is no suggestion of any relationship between the impairment of the back and the impairment of the neck and the chronic anxiety state. 14. S 12D of the Police Regulation Superannuation Act 1906 is in the following terms: (1) The Board may pay to a member of the police force who is hurt on duty or to a former member of the police force who was hurt on duty when he was a member of the police force a gratuity of such amount as the Board determines, not exceeding the amount that, in the opinion of the Board, would have been payable to the member or former member under Divisions 3, 4 and 5 of Part 3 of the Workers Compensation Act 1987 if the member were, or the former member had been, a worker for the purposes of that Act. (2) The Board may pay a gratuity to a member of the Police Force under this section notwithstanding that the member is not discharged from the Police Force as a result of being hurt on duty. (3) The Board shall not grant a gratuity under this section to a member or former member of the Police Force unless: (a) an annual superannuation allowance is payable to the member or former member under s 10; or (b) where an annual superannuation allowance is not so payable, the injury to which the claim for the gratuity relates is determined, pursuant to subsection (4) or on appeal, to have been caused by the member having been hurt on duty or the former member having been hurt on duty when he was a member of the police force. (4) Where a member or a former member of the police force who is not entitled to a superannuation allowance under s 10 claims a gratuity under this section, the Commissioner of Police shall, at the request of the Board: (a) 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 being hurt on duty when he was a member of the police force; and (b) give written notice of the decision to the Board and to the claimant. 15. The first thing one can decry about this provision is the failure of the Legislature to qualify gerunds with the possessive case. 16. The submission put by the Commissioner of Police is that a decision under s 12D(4) can only be made where the former member of the Police Force is not entitled to an annual superannuation allowance. If he be entitled to such an allowance, no decision can be made and therefore no appeal can be brought to this Court. That does not appear to have been the opinion of the Commissioner by his delegate who made the decisions of 2 April 1997 and 29 August 2001. 17. The interpretation advanced by the Commissioner leads to a glaring anomaly which the Commissioner by his counsel agreed was 'harsh' and which in the course of argument I referred to as being either 'inequitable' or 'iniquitous'. Perhaps all three adjectives should be ascribed to the interpretation alleged. 18. Let me put forward this theoretical case which will show the glaring anomaly. Assume that a member of the Police Force injures his right knee whilst chasing a criminal suspect. Assume that he injured a medial meniscus and requires medial meniscectomy. Assume the result of that condition, he has a 15 per cent loss of efficient use of his right leg at or above the knee. If with that condition, the member of the Police Force stays on active service, he is entitled to a gratuity equivalent to s 66 under s 12D. Assume that the condition of his knee is such that it precludes him from carrying out the duties of his office and he is medically discharged pursuant to s 10B. In those circumstances, he would be entitled to a gratuity under s 12D. 19. However, assume that after the medial meniscectomy, the member of the Police Force is able to return to duty but before receiving any gratuity under s 12D he is shot in the head by a criminal sustaining organic brain damage as a result of which he is medically discharged from the Police Service on an annual superannuation allowance. The argument of the Commissioner of Police is that in such circumstances the brain-injured former member of the Police Force is not able to collect a gratuity under s 12D for the earlier damage to his right knee, the earlier loss of efficient of his right leg at or above the knee. Such a glaring anomaly can hardly be the Legislature's intention. I cannot accept the Legislature would act so capriciously. 20. There is however authority to support the Commissioner's interpretation. The first decision is that of his Honour the Chief Judge, Justice Campbell, in Williams v The Commissioner of Police (1994) 10 NWSCCR 350. The ratio decidendi of that case is that as the Board had not requested the Commissioner of Police to make a decision under s 12D(4) there was no right of appeal. At 352F his Honour said: It is clear, I think, that were a member or former member makes an application to the Board, the Board requests the Commissioner to make a determination. There is not, it seems to me, a power in the Commissioner to make that determination unless requested to do so. The determination required to enliven section 3(b)[scil. para (3)(b)] is one made pursuant to section 4[scil. Subsection (4)] or on appeal. Accordingly, unless there has been a request from the Board to the Commissioner, even if the Commissioner purports to make a determination, that determination is not one capable of enlivening 3(b). There is a question, which does not arise in this case since no request was made by the Board but was considered in argument before me, as to whether or not the reference in subsection 3(a) to an annual superannuation allowance being payable to the former member under s 10 and the reference to annual superannuation allowance in subsection (4) is qualified by some such provision as "arising from a hurt on duty injury other than that in respect of which the claim for benefits under s 12D was made". This question does not arise n this case and, as I think it appropriate that I deal with this matter now in order that the applicant may proceed in an appropriate way with her claim, I do not propose to take time to express, in detail, views upon that matter. I should however say, in deference to the argument put to me, that my present view is that the phrase cannot be so limited. It may be that the situation of a former member, who had an annual superannuation allowance as a consequence of one hurt on duty injury, seeking benefits in respect of another hurt on duty injury was not directly addressed by the Legislature. However, it does seem to me that the scheme of the provisions can work quite effectively on the simple basis, if the former member does have an annual superannuation allowance, then the Board would make the necessary decision to found the payment of benefits under the section relating to some separate injury, but that, if there is not such an allowance payable, the provisions of subsection 3(b) and section 4 operate. In my view, the better conclusion is the words "of qualification" contended. for by Mr Ower, [counsel for the appellant], cannot be read into the provisions which are, if ambiguous, capable of sensible application if read in terms of their expression. In each instance there would be appropriate provision for appeal. 21. More recently, his Honour Judge Geraghty has upheld the Commissioner's argument in Whittaker v The Commissioner of Police (unreported, 10 December 2001 Matter No 7027 of 1998). His Honour said in par (8) and (9): 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, normally, 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 a 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) paragraph (a). 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 a relevant decision of the Commissioner was made on 23 June, and a 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. 22. I am advised that her Honour Judge Ashford has recently made a similar decision in Lembcke v The Commissioner of Police on 5 April 2002, but her Honour's reasons for judgment have not yet been transcribed. It appears that Mr Andrew Kostopoulos of counsel presented the same argument to her Honour Judge Ashford as he presented to his Honour Judge Geraghty in Whittaker's case. 23. Comity indicates that I ought follow the decisions of Judge Geraghty and Judge Ashford. I have indicated my stance in the question of comity in Seccombe v Demolon Pty Ltd (1995) 12 NSWCCR 409. As a general proposition, I apply comity unless there were earlier inconsistent judgments or unless I am convinced that the earlier decisions were wrong. With great respect to their Honours Judge Geraghty and Judge Ashford and perhaps at the risk of being extremely foolish, I believe their Honours to have been wrong. 24. The glaring anomaly cannot as I have said, be the Parliamentary intention. When one looks at s 12D, one sees in subsection (3) that the Board cannot grant a gratuity unless an annual superannuation allowance is payable or where it is not payable, the injury on which the claim is founded is certified as having been caused by the member's having been hurt on duty. The Act supposes in subsection (3) par (a) that the gratuity sought is in respect of the same medical condition for which the appellant has been discharged. That is an assumption which this case and the cases which I have just cited indicates is erroneous. 25. In Williams's case, his Honour the Chief Judge referred to words "of qualification" advanced by Mr Ower of counsel which it is clear Mr Ower submitted to his Honour ought be read into s 12D for the purpose of making the section work effectively. In my view, such words of qualification ought be read in to make the section work. For example, in subsection (3) par (a), the words "annual superannuation allowance" ought be read as referring to "caused by the members having been hurt on duty in respect of the injury in question" and the same words of qualification ought be read into subsection (4) after the words "annual superannuation allowance". Reading such words of qualification into s 12D(3)(a) and s 12D(4) removes the glaring anomaly to which I have referred and makes the Act work effectively. 26. I must say for my part that I, as a general proposition, approach principles of statutory interpretation in the literal, legalistic fashion. However, to do so in this case, as has happened in the earlier decisions, leads to such a glaring anomaly which is unjust to many members of the Police Force that the words of qualification must be implied to satisfy the obvious statutory intention to give members of the Police Service who are contributors to the fund established by the Police Regulation (Superannuation) Act benefits equivalent to s 66 and s 67 of the Workers Compensation Act 1987. 27. For those reasons, the notice of motion filed in court this day by the Commissioner of Police is dismissed. 28. I order the Commissioner of Police to pay the appellant's costs of the motion. 29. I certify for counsel in the motion. Mr B S Kelly instructed by Oates & Smith appeared for the applicant. Mr Barham instructed by the Commissioner of Police appeared for the respondent.