Dixon v Commissioner of Police [2001] NSWCC 174

Reported Decision : (2001) 22 NSWCCR 104

Compensation Court of New South Wales

CITATION : Dixon v Commissioner of Police [2001] NSWCC 174 PARTIES : Paul Dixon Commissioner of Police MATTER NUMBER(S) : 4360 of 2000 JUDGMENT OF: Walker J at 1 CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: ss 10; 12D(4), 21(1)(b) Police Regulation (Superannuation) Act 1906 Hurt on duty by nature and conditions of work Can Refusal to consider claim by the Commissioner of Police ground on appeal under s 21 CASES CITED: DATES OF HEARING: 07/05/01 DATE OF JUDGMENT: 07/06/2001

FOR APPLICANT: Mr Walsh instructed by Oates & Smith Solicitors LEGAL REPRESENTATIVES: FOR RESPONDENT: Mr P Dailly instructed by Michael North Holmes Solictor

JUDGMENT: THE APPLICATION TO STRIKE OUT 1. The Commissioner of Police moves to strike out as statute barred an Application for Determination by Paul Dixon pursuant to s 12D of the Police Regulation (Superannuation) Act 1906 which provides for lump sum gratuities to members of the police force hurt on duty who have sustained losses and impairments compensable under Division 3, 4 & 5 of Pt 3 of the Workers Compensation Act 1987. 2. More specifically Mr Dixon makes application pursuant to s 21(1)(b) because he is aggrieved by the Commissioners refusal to decide whether or not the nature and conditions of his employment caused him to be hurt on duty. THE GROUNDS 3. The respondent also rests its case on the provisions of s 21 of the Police Regulation (Superannuation) Act 1906 which imposes a 6 months limitation on appeals against decisions made by the Commissioner of Police pursuant s 12D4(a). The respondent asserts that the Commissioner's decision was made on 18 November 1997 almost 3 years prior to the appeal. MATTERS FOR DETERMINATION 1. Was Paul Dixon entitled to an annual superannuation allowance under s 10 of the Police Regulation (Superannuation) Act 1906? 2. If the answer to question 1 is in the negative did he submit a claim for a gratuity under s 12D(4) of that Act to the STC? If so when? 3. Did the STC request the Commissioner of Police to decide whether or not the nature and conditions of his work as a police officer was an injury sufficient to ground a determination that Mr Dixon was hurt on duty? If so when? 4. Did the Commissioner of Police or his delegate make such a decision? If so did he give written notice to the STC and claimant? 5. If the answer to (4) is in the negative does the Commissioner's act of omission in failing to make a decision under s 12D(4)(a) nevertheless constitute a decision within the meaning of s 21(1)(b) of that Act? 6. If failure to make a decision meets the requirements of s 21(1)(b) on what day could that failure be said to have occurred? 7. Does s 21(1) apply to bar Mr Dixon from taking these proceedings? 8. Has the Commissioner by his unconscionable conduct waived his right to plead the s 21(1) defence? THE CHRONOLOGY 4. It is useful in understanding the complex legal issues to be determined to consider the following chronology of events which I have compiled after reviewing the exhibits tendered in this case. + Mr Dixon joined the Police Force in 1974. + On 27 October 1985 Mr Dixon was involved in a motor vehicle collision whilst on duty sustaining injury to both knees and right ankle. He returned to general duties in 1985 when the injuries settled down. + On 22 October 1997 Mr Dixon made an application under s 12D(4)(a) to the STC alleging both the 1985 frank injury and a nature and conditions injury between 1985 and 1996. + On 29 October 1997 the STC wrote to the NSW Police Service requesting the Commissioner to make a determination under s 12D(4). + On 18 November 1997 the Commissioner issued a certificate pursuant to s 12D(4)(a) determining only that Mr Dixon had been hurt on duty on 27 October 1985. + Responsibility under the Act to determine the quantum of the lump sum benefits is vested by the Act in the STC. On 1 April 1998 the STC advised Mr Dixon's solicitors of their assessment of his lump sum entitlements and of his right of appeal under s 21. + On 7 May 1998 Mr Dixon's solicitors wrote to the STC asking them to clarify the date of injury in respect of which the lump sum entitlements were being paid. + The STC on 2 June 1998 advised that the relevant date was 27 October 1985 and if the applicant wanted that altered he should approach the Police Service to have the s 12D(4) certificate amended. + On 7 August 1998 the applicant issued an Application for Determination appealing the lump sum assessments. + On 2 October 1998 the Commissioner issued a certificate under s 10B(3)(a) which relates to an annual superannuation allowance (as opposed to lump sum compensation under s 12D). Again the date of injury was stipulated as 27 October 1985. + Mr Dixon was advised of that determination on 17 November 1998. + On 13 January 1999 the applicants solicitors wrote to the STC asking that the s 12D certificate be amended to take into consideration the nature and conditions injury enclosing medical reports to support that claim. + The STC wrote to the applicants solicitors on 14 January 1999 seeking further and better particulars of what was being claimed in the Application for Determination. + On 2 February 1999 having by then noted the letter from the applicants solicitors concerning the nature and conditions claim the STC wrote alleging that what Mr Dixon was seeking to do was challenge the original s 12D(4) certificate. The STC also point out that the 6 months for appeal under s 21 ran from 1 April 1998 (and by implication had expired on 1 October 1998). + On 16 March 1999 the applicants solicitors wrote to the STC indicating their intention to amend the existing Application for Determination to raise the nature and conditions injury. + On 28 July 1999 the applicants solicitors again reminded the STC that their client had a nature and conditions claim and requested that the STC ask the Commissioner to amend the s 12D(4) certificate. + On 23 August 1999 the STC responded stating that if Mr Dixon had a difficulty with the Commissioners decision he should have appealed it within the period prescribed by s 21. + On 18 February 2000 the applicants solicitor threatened to issue a writ of mandamus to force the STC to comply with its statutory duty to make the reference. They also pointed to an error in the lump sum assessment concerning the s 67 threshold and indicated that an appeal would be lodged against the decision of 23 August 1999. + On 28 April 2000 the STC wrote to the Commissioner advising of the request for a review, enclosing the amended Application for Determination and requesting the Commissioners delegate make a further decision under s 12D(4) in respect of the nature and conditions claim. + On 2 June 2000 the STC wrote to Mr Dixon's solicitors advising the Commissioner was not prepared to make a further decision on the matter. + The Application for Determination was filed on 27 July 2000. THE LAW 5. Counsel for both parties have referred me to a large number of authorities they suggest might be applied in this case. 6. On the issue of whether or not a failure on the part of the Commissioner to make a decision itself constitutes a decision, both counsel refer the Court to the decision of Chief Judge Campbell in Richardson v S.A.S Trustee Corporation (Unreported 31 August 1999 matter no 7861 of 1998). 7. The decision appealed in Richardson's case was of the STC who was not willing to consider a further application for an increase in Mr Richardson's superannuation allowance under s 10(1A)(c). 8. The Chief Judge confirmed the mandatory nature of the 6 months limitation on appeals imposed by s 21 as determined by His Honour Judge Geraghty in Jennings v Commissioner of Police (1996) 13 NSWCCR 640. The Chief Judge held that the decision by the Committee that it was unwilling to consider an application was not a decision on a matter that arises under this Act by reason of a member of the police being hurt on duty. 9. However he then went on to say: It might be, although I do not need to decide this point, that in some circumstances refusal to consider an application could be considered an effective decision against the application. 10. The Chief Judge said that: it would seem an unacceptable construction of the statute and quite inconsistent with decisions such as Jennings if the mandatory time limitation could be overcome by no more than making a fresh application for the same issue to be determined again. 11. He then added the final rider relevant to this case: It is to be remembered that we are not here dealing with an ongoing state such as a developing medical condition. 12. The Chief Judge had earlier dealt with the proper construction of s 21 in Williams v Commissioner of Police (1994) 10 NSWCCR 351. 13. There he found there was no power in the Commissioner to make a determination under s 12D unless there was a request from the Superannuation Board to do so. 14. In Lalor v The Commissioner of Police (unreported 3 December 1993 14467/92) His Honour Judge Duck dealt with a claim for medical expenses based on a s 12D(4) certificate issued on 7 July 1991 that Mr Lalor had been hurt on duty. The Commissioner took the view that there was no nexus between the expenses and the certified injury. Judge Duck held that on a proper construction of s 12D once the Commissioner had determined that a police officer was hurt on duty then claims flowing from that decision were the responsibility of the STC not the Commissioner. 15. He found that the Commissioners subsequent certification that Mr Lalors medical expenses were not hurt on duty was ultra vires the Act and the proceedings were a nullity. 16. His Honour Judge Bishop followed this decision in Rayment v Commissioner of Police (unreported 13 May 1994 15605/93). The facts here were similar with the Commissioner issuing two s 12D certificates. The first found Mr Rayment had been hurt on duty in 1986 but the second said there was no nexus between that injury and the medical expenses claimed. 17. Judge Bishop expressed the opinion that to determine the ultra vires argument it was necessary to consider what was meant by the term gratuity in s 12D and whether it was used in a narrow sense so that a s 12D(4) certificate was required in respect of each separate claim made. Judge Bishop took the view that the logical construction of s 12D was to interpret gratuity in the broad sense as meaning coverage of the full range of benefits under s 12D(1). Accordingly once a finding of hurt on duty is made the subsequent management of that claim is really the responsibility of the Board. 18. This point does not have a great deal of bearing on Mr Dixon's case because he not alleging that his claim arises directly out of the original injury on 29 October 1985. Rather he is alleging a further a nature and conditions injury which has partly contributed to his permanent losses. 19. I agree with the outcome in both Lalors and Rayment's cases taking the view that the Commissioner is functus officio in relation to a particular claim once the hurt on duty certificate issues. However the point I would make for the purposes of this case is that the elasticity of meaning of the word gratuity is not the determining factor in deciding whether a s 12D(4) certificate covers a particular injury. 20. In Adams v Commissioner of Police His Honour Judge Armitage in my view correctly pointed out that for the purposes of deciding whether a member of the Police Force has been injured in circumstances that produce an entitlement to benefits under the Police Regulation (Superannuation) Act 1906, the definition of hurt on duty in s 1(2) of the Act adopts and applies all the provisions of the Workers Compensation Act 1987 that determine the circumstance in which a worker is entitled to compensation. 21. To establish a right to medical expenses under the 1987 Act a worker must inter alia establish that the medical treatment was as a result of an injury at work. It follows that if that injury has already been certified under s 12D(4) then any further certificate is superfluous. 22. However if the worker subsequently sustains a further injury then I take the view that even if that subsequent injury is a permanent aggravation of that previously certified then because it is separately compensable under the Workers Compensation Act the Commissioner is required to make a further determination under s 12D(3) or (4). 23. In Surplice v SAS Trustee Corporation (unreported 22 April 1998) Her Honour Judge Truss comes to the same conclusion when she held: 1. The heading above the dividing line in the Delegates s 12D(4) certificate compromises part of his decision. 2. That Judge Bishop's decision in Rayments Case that once the Commissioner made a finding of hurt on duty that the Board has a discretion to meet all subsequent components of the claim does not include a subsequent aggravation of the initial injury.