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. 24. In Saad v Commissioner of Police (1995) 12 NSWCCR 70 the Court of Appeal held that this Court was bound by a certificate from the STC finding that a police officer suffered a particular infirmity. However the Police Officer still bore the onus of establishing a causal relationship between the infirmity and work and this Court was entitled to go behind the certified condition to determine that casual connection. ESTOPPEL 25. Mr Walsh alleges that the Court should find that the respondents conduct has been such that it should be estopped from relying on the s 21 defence based on the decision of the High Court in The Commonwealth of Australia v Verwayen (1990) 170 CLR 394. 26. Chief Justice Mason in Verwayen's case held there was but one doctrine of estoppel which provides that a court may do what is required, but not more, to prevent a person who has relied upon an assumption as to present past or future state of affairs (including a legal state of affairs) which assumption the other party has induced him to hold, from suffering detriment in reliance upon the assumption. A central element of the doctrine of estoppel is that there must be a proportionality between the remedy and the detriment which is its purpose to avoid. 27. The High Court in the earlier case of Walton's Store Interstate) Limited v Maher and Anor (1987 - 1988) 164 CLR 387 had established that equitable estoppels apply to compel adherence to an assumption of rights. Chief Justice mason at p 406 said: The foregoing review of the doctrine of promissory estoppel indicates that the doctrine extends to the enforcement of voluntary promises on the footing that a departure from the basic assumptions underlying the transaction between the parties must be unconscionable. THE MEDICAL EVIDENCE THE APPLICANTS MEDICAL CASE 28. The applicants treating orthopaedic surgeon Dr Johnston reported on 17 September 1997. He diagnosed quite severe chondromalacia and arthritic changes in the patello - femoral joints and medial compartments of both knees. Dr Johntson said he had treated the applicant since his car accident in October 1985 and performed arthroscopies to the left knee in March 1986, June 1989, July 1992, July 1995 and May 1997 and to the right knee in June 1986, November 1987, March 1989, June 1992 and July 1995. 29. He then said Since July 1992 photographs have been available of pathology at each of those procedures and are in his possession. They confirm the gradual increase in degenerative changes in the medial compartment of each knee and in the patella region. An increasing synovitis has been noted over the years which has required several cortisone injections. His pathology is an effect of the injury of October 1985 by way of causation and the continuing effect on his knee of the nature of his Police duties aggravating the knees so that they have progressed relentlessly to increasing degenerative status. RESOLVING THE ISSUE 1. S 10 ALLOWANCE 30. It is a condition precedent to grounding an application under s 12D(4) that the member of the police force is not entitled to an annual superannuation allowance under s 10. Mr Dixon's entitlement to such an allowance was not determined until 2 October 1998. Accordingly I find that Mr Dixon was not entitled to an annual superannuation allowance under s 10 either at the time his October 1997 claim was made to the STC or at the time the Commissioners certificate issued on 18 November 1997. 31. Mr Walsh raises en passant the legal implications for the original s 12D(4)(a) certificate of the Commissioners subsequent decision to issue a s 10B(3)(a) certificate on 2 October 1998. 32. There is no power to issue a s 12D(4) certificate where an entitlement to s 10 benefits has been found. In such circumstances the Commissioners certificate can only be issued under s 12D (3)(a). 33. Undoubtedly the s 12D(4) certificate was validly issued on 18 November 1987. However Mr Walsh suggests that the subsequent finding of a s 10 entitlement has somehow converted it into a s 12D(3) certificate. The statute does not contemplate such a conversion. The only implication I can draw from these circumstances for Mr Walsh's client is that the Commissioner was not entitled to issue (or amend) a s 12D(4) certificate on 2 October 1998. He was however entitled to issue a s 12D(3) certificate. 2. THE S 12D CLAIMS A. 22 October 1997 34. The original application for a s 12D gratuity was made by letter from the applicants solicitors to the STC dated 22 October 1997. I note that letter contained a report from Dr Johnston dated 17 September 1997. 35. I also note that the letter made it perfectly clear that two injuries were alleged viz: 1. A frank injury on 27 October 1985 and 2. between the period 1985 to 1989 when engaged in general duties, 1989 to 1994, serving in the anti theft squad Bankstown and October 1994 to March 1996 as a shift serve supervisor at Campbelltown materially aggravated the condition as reflected in Dr Johnston's report. 36. On 18 November 1997 John Galvin, as delegate for the Commissioner issued the s 12D certificate. Its notable features were: 1. It dealt with an application by Sergeant Paul Dixon registered No 17280 to be paid compensation under section 12D of the Police Regulation (Superannuation) Act 1988, in respect of a prominent disability claimed as resulting from a duty related injury . 2. Then immediately underneath the words were typed: Date of Injury 27 October 1985 . This was underlined to give the firm impression that it was part of a description of the claim. 3. Under the dividing line the following words appeared: In terms of s 12D(4)(a) of the Police Regulation (Superannuation) Act 1906 (as amended), I have determined that Sergeant Dixon's injury to both his knees to which his application dated 22 October 1997 refers was caused by the member being hurt on duty. 37. The plain meaning of the certificate is that the duty related injury in respect of which Mr Galvin made has determination was that on 27 October 1985. 38. It is understandable therefore that Mr Dixon's solicitors wrote to the STC on 7 May 1998 querying the date of injury and (albeit obliquely) asking what had happened to their clients nature and conditions injury claim. 39. On 2 June 1998 the STC replied stating that the relevant date was 27 October 1985. The letter then added: should you wish to have a different date considered you should approach the Police Service and request an amendment certificate. 40. This was very strange advice given the requirement in s 12D(4) that the Commissioner consider claims at the request of the STC and given the STC;s allegation that the nature and conditions claim was considered by the Commissioner on 18 November 1987. Unfortunately the respondent has not produced its file so that this Court can determine precisely what Mr Galvin had before him and whether or not he gave any consideration to the nature and conditions claim. 41. Mr Dixon's solicitors letter of 22 October 1997 and Dr Johnston's report were however date stamped by Police Workers Comp on 31 October 1997. Mr Dailly asks the Court to infer from that stamp that Mr Galvin must have had the applicants solicitors original claim before him including Dr Johnston's report. 42. On 7 August 1998 Mr Dixon issued an Application for Determination against the STC appealing the lump sum determinations. 43. On 13 January 1999 Mr Dixon's solicitors asked the STC to request the Commissioner to amend his s 12D(4) certificate to include the nature and conditions injury. 44. On 2 February 1999 the STC responded in effect saying that what Mr Dixon was seeking to do was challenge the Commissioners determination of 18 November 1997 and the time for such an appeal had expired. 45. On 16 March 1999 Mr Dixon's solicitors advised they were amending the Application for Determination. The amendment sought orders directing the STC to request the Commissioner to amend the s 12D(4) certificate to include the nature and conditions claim. 46. On 28 July 1999 Mr Dixon's solicitors again sent a letter asking the STC to make a request of the Commissioner to amend his certificate. 47. On 23 August 1999 the STC reiterated their position that Mr Dixon was statute barred. 48. On 18 February 2000 Mr Dixon's solicitors wrote to the STC threatening to apply for a writ of mandamus to force the STC to do its duty and make the request. 49. The on 28 April 2000 the STC without informing Mr Dixon's solicitors wrote the Police Service a letter containing the following relevant statements: Mr Frank Oliver of your office has advised that the letter by the STC dated 29 October 1997 to the Commissioner requesting a decision pursuant to s 12D(4) did in fact enclose the medical report of Dr Johnson dated 17 September 1997 and the letter by the solicitors dated 22 October 1997, contrary to what is said at point 2 of the letter by the solicitors dated 18 February 2000.... You will see from the letter of 18 February 2000 that the solicitors want the Commissioner to decide whether the nature and conditions of their clients employment was hurt on duty. Following further discussions with its counsel, STC request that the Commissioners delegate make a decision in relation to this matter pursuant to s 12D(4). 50. This again was a very strange request given that the s 10B(3)(a) certificate had issued on 2 October 1998 and s 12D(4) was no longer an option. 51. On 2 June 2000 the Commissioners delegate wrote to the STC advising I am not prepared to make a further decision in this matter. 52. I have identified three questions requiring my determination from this evidence: (a) Did the Commissioner make a decision concerning the nature and conditions claim on 18 November 1997? (b) If not, was the Commissioners failure to make a decision in respect of the claim under s 12D(4)(a) nevertheless a decision capable of aggrieving Mr Dixon and so grounding an appeal under s 21. (c) If the Commissioners failure to make a decision in November 1987 was not appealable under s 21 is the Commissioners refusal to make a further decision following the 28 April 2000 reference from the STC an effective decision within the meaning of s 21? 1. Was the nature and conditions claim decided on 18 November 1997? 53. Mr Dailly for the respondent submits that I should find that the Commissioners delegate has impliedly rejected the nature and conditions claim. 54. Apparently Mr Dixon's file was temporarily mislaid because Exhibit 26 which is a fax from Brian Matthews of the NSW Police Service Workers Compensation section dated 1 March 2000 indicates the file had been located. That file included the original claim from Mr Dixon's solicitors dated 22 October which bears a date stamp from Police Workers Comp dated 31 October 1997. However no documents are presented to this Court that would indicate that the nature and conditions claim was either considered or rejected by the Commissioners delegate Mr Galvin. 55. If Mr Galvin had in fact considered and rejected the nature and conditions claim then it would have been a simple matter to put into evidence documentation verifying that fact or to call Mr Galvin to explain his certificate. The respondent chose not do so. Moreover the fact that the STC was moved on counsels advice to request amendment to the certificate on 28 April 2000 strongly suggests to me that the STC had no confidence that Mr Galvin did consider the nature and conditions claim. 56. The Court is left with a certificate which on its face plainly states that the only injury Dr Galvin considered was that of 27 October 1985. 57. On the balance of probabilities I determine that the only injury Dr Galvin considered in making the determination under s 12D(4)(a) was the injury on 27 October 1995. 58. In Richardson's case the Chief Judge took the view that in appropriate circumstance refusal to consider an application could be considered an effective decision against the application. There is no evidence of a refusal here however. 59. A more likely explanation is that the nature and conditions claim was either overlooked or wrongly considered to be no more than a part of the frank injury. 60. Whatever the real reason for the form of the certificate I do not consider that the Commissioner has made out a case that an effective decision was made against the claim for the nature and conditions injury. 61. There being no effective decision to aggrieve Mr Dixon then no right of appeal arises under s 21(1). 2. Is the Commissioners refusal to further consider the claim a decision capable of triggering s 21(1)? 62. The correspondence and events I have recited show that Mr Dixon's solicitors forwarded 5 letters to the STC requesting that the nature and conditions claim be again placed before the Commissioner for determination. 63. Indeed it took a threat of a prerogative writ to stir the STC into making the further reference on 28 April 2000. Mr Dixon's claim to this statutory court for mandamus was misconceived but it indicates that Mr Dixon was vigorously pursuing his rights. 64. The STC reference was also in error in that it refers to s 12D(4) not s 12D(3) following the issue of a s 10B(3) certificate. 65. The question is whether or not the Commissioners ultimate decision not to make a further decision on 1 June 2000 should be considered an effective decision against the application. It is clear from the STC's letter of 28 April 2000 that the Commissioner was now fully apprised of the nature and conditions claim. 66. I agree with the Chief Judge's view that it would be an unacceptable construction of the statute if the mandatory time limitation could be overcome by no more than the making of a fresh application in respect of the same injury. Equally because s 21(1) bestows rights on aggrieved police officers to appeal such decisions it would be an unacceptable construction of the statute if those rights could be denied by the Commissioner simply refusing to make a determination. 67. At paragraph 20 of his judgment the Chief Judge intimated that in the case of a developing medical condition it may be appropriate for the STC to reconsider a matter. I have already expressed my view that in the case of a subsequent nature and conditions injury it is appropriate for the Commissioner to issue a fresh certificate. 68. On my findings of fact the April 2000 request did not call for a review but was rather a case of the STC requesting the Commissioner to make a decision that was properly before him but which for reasons unexplained to this Court his delegate failed to address. 69. Accordingly I take the view that the Commissioners refusal to make a decision is an effective decision against the application and so invokes the provisions of s 21(1) of the Act on 1 June 2000. 70. The amended Application for Determination appealing that decision was filed on 27 July 2000 within the period of 6 months allowed by s 21(1)(b). The Estoppel Issue 71. Mr Dixon submits in the alternative that because the unconscionable conduct of the Commissioner has caused Mr Dixon, to his detriment, to rely on the assumption that his nature and conditions claims was still legally extant so inducing him not to appeal within the statutory period the Commissioner should be estopped from raising the s 21 defence. 72. Having decided that Mr Dixon is not statute barred there is no need for me to address this estoppel issue. However I should remark that the alleged unconscionable conduct to which Mr Walsh refers appears to be that of the minions of the STC not the Commissioner of Police. FINDINGS 73. I summarise my findings as follows: 1. Paul Dixon was not entitled to an annual superannuation allowance under s 10 of the Police Regulation (Superannuation) Act 1906. 2. Paul Dixon submitted his claim to the STC for a gratuity based on a nature and conditions injury between 1985 and 1994 on two occasions viz: (i) 22 October 1997 and (ii) 13 January 1999 3. The STC requested the Commissioner of Police to make a determination under s 12D on two occasions viz: (i) 29 October 1997 and (ii) 28 April 2000 4. The Commissioner of Police failed to make a decision in respect of Mr Dixon's nature and conditions claim either on 18 November 1997 or 2 June 2000. 5. The Commissioner's failure to make a decision on 18 November 1997 was not an effective decision for the purposes of s 21(1) of the Act and accordingly time did not run pursuant to s 21(1)(b). 6. The Commissioner's failure to make a decision on 2 June 2000 was an effective decision triggering Mr Dixon's entitlement to appeal under s 21(1). 7. Mr Dixon made his appeal within the time limits prescribed by s 21(1)(b). ORDERS 74. I therefore make the following orders: 1. The Commissioner's Application to strike out Mr Dixon's Application for Determination is dismissed. 2. The Commissioner pay Mr Dixon's costs of the application to strike out. Mr Walsh instructed by Oates & Smith Solicitors appeared for the applicant Mr P Dailly instructed by Michael North Holmes Solicitor appeared for the respondent 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.