Industrial Court of New South Wales CITATION: Baena v Commissioner of Police (No 2) [2009] NSWIRComm 182 PARTIES: Thomas Baena (Applicant/Respondent on Notice of Motion) Commissioner of Police (Respondent /Applicant on Notice of Motion) FILE NUMBER(S): IRC 197 of 2008 CORAM: Boland J President CATCHWORDS: SUPERANNUATION - Police - Interlocutory proceedings - Claim for superannuation benefit under an industrial instrument - Whether there should be a separate determination of issues from the substantive issue - Issues proposed to be determined separately are estopped by convention or alternatively promissory estoppel and whether applicant is precluded from making claim under terms of industrial instrument - Separate hearing and determination ordered LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Idoport Pty Ltd v National Australia Bank [2005] NSWSC 1273 Integral Home Loans Pty Ltd & Anor v Interstar Wholesale Finance Pty Ltd & Anor [2006] NSWSC 1464 HEARING DATES: 27 October 2009 DATE OF JUDGMENT: 9 November 2009 Mr R Goot AM SC with Mr A Cheshire of counsel (Applicant/Respondent on Notice of Motion) United Legal LEGAL REPRESENTATIVES: Mr P Kite SC with Ms J Oakley of counsel (Respondent /Applicant on Notice of Motion) Henry Davis York, Lawyers JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: BOLAND J, President Monday 9 November 2009 Matter No IRC 197 of 2008 THOMAS BAENA v COMMISSIONER OF POLICE Application by Thomas Baena for lump sum benefit pursuant to clause 9 of the Crown Employees (Police Officers Death and Disability) Award 2005 INTERLOCUTORY JUDGMENT (No. 2) [2009] NSWIRComm 182 1 The Court has before it two notices of motion. The first, by the respondent, the Commissioner of Police, seeks a separate hearing to determine two questions: (a) whether the applicant is covered by the Crown Employees (Police Officers Death and Disability) Award 2005 in respect of a benefit for total and permanent disability; and (b) whether, having received payment of a Total Permanent Invalidity benefit under the Additional Benefit Scheme from the administrator of State Authorities Superannuation Scheme, the applicant is entitled under the Crown Employees (Police Officers Death and Disability) Award to a benefit for partial and permanent disability. An affidavit of Vanessa Louise Anderson dated 1 October 2009 was filed in support of the motion. 2 The applicant, Mr Thomas Baena, opposes the respondent's motion. At the same time, he seeks by way of the second notice of motion, to have heard, as a preliminary issue, his contention that the respondent is estopped from denying that the applicant is under a total and permanent disability ('TPD'), within the meaning of, and under, the Crown Employees (Police Officers Death and Disability) Award ('the Award'). Although the application was for a preliminary hearing, it was submitted for Mr Baena there were three alternatives: a. The Applicant's estoppel case should be heard as a preliminary issue; b. The Applicant's estoppel case should be heard as a preliminary issue at the same time as the preliminary construction issues proposed by the Respondent; c. All issues should be heard together at trial. 3 The motions relate to an application by Mr Baena for benefits to be paid to him under the Award. Mr Baena is a former police officer. He was medically discharged from the Police Service in 2007 following an injury incurred whilst on duty. Mr Baena had sought to obtain a benefit under the Award, but this was declined. Consequently, Mr Baena made application under s 365 of the Industrial Relations Act 1996 for a lump sum benefit pursuant to cl 7 or, in the alternative, cl 9 of the Award. This application is opposed by the respondent. 4 Clause 7 of the Award provides for an entitlement to a lump sum payment in the event that an on duty injury results in a police officer's death or total and permanent disablement. Clause 9 provides for a lump sum payment where an officer has received an on duty injury if placement in a police position is not possible and redeployment to an administrative officer position is not agreed to by the officer and the officer is terminated. Respondent's motion 5 The essence of the respondent's contentions was that: (i) Mr Baena was a member of the State Authorities Superannuation Scheme ('SASS') and having applied for additional benefit cover was covered under SASS in respect of a Total and Permanent Invalidity Benefit; (ii) Under cll 5.2 and 5.3 of the Award, police officers who: (a) are members of SASS but who do not contribute to SASS for additional benefit cover; or (b) are members of SASS, contribute to additional benefit cover and elect to relinquish that cover, contribute 1.8 per cent of their salary to NSW Police as a contribution. (iii) At all relevant times, Mr Baena contributed only 0.88 per cent of his salary to NSW police as a contribution. In accordance with cl 5.4 of the Award, Mr Baena was not covered in relation to Total and Permanent Disability benefits under the Award. (iv) In September 2007, Mr Baena applied to SASS for a Total and Permanent Invalidity Benefit. (v) In November 2007, the Trustee of SASS advised Mr Baena that it approved payment to Mr Baena of a Total and Permanent Invalidity Benefit under SASS (vi) Under cl 10.6 of the Award, officers may only receive one benefit. 6 The respondent referred to the decision of Einstein J in Idoport Pty Ltd v National Australia Bank [2005] NSWSC 1273 and the summary of principles to be applied as to whether there should be a separate determination of an issue, and to Integral Home Loans Pty Ltd & Anor v Interstar Wholesale Finance Pty Ltd & Anor [2006] NSWSC 1464 where Brereton J stated at [6]: [6] While much has been said against the resolution of separate questions in Courts of high authority, nonetheless, since the (NSW) Civil Procedure Act 2005, it is my view that the Court should take a more interventionist role in identifying and separating important issues which can resolve significant parts of the litigation expeditiously. 7 Relying on these and other authorities the respondent submitted: The hearing of the all matters raised in issue in the proceedings has been estimated to take at least 5 days. Although the matter has on two occasions been set down for hearing the hearing has been adjourned on each occasion. It is unlikely that a hearing of all issues would be allocated before next year. The hearing of the preliminary issues is estimated to take no more than a day. The facts involved in determining the separate questions are limited and uncontroversial. The hearing of the identified issues separately will not add to the hearing time. Instead it has the potential of substantially reducing the costs involved in the proceedings, reducing the hearing time and of resolving the issues in the proceedings in a timely and cost effective manner. The determination of these proceedings has been long delayed by the applicant's actions and inaction. The determination of the identified separate issues will mean that at worst some issues will be have (sic) determined. 8 The applicant's answer to the respondent's contention was that cl 6 of the Award provided that: The benefits conferred upon police officers by this Award shall be in addition to any superannuation benefits that may be payable to police officers and any payments under the Workers Compensation Act 1987 and the Workplace Injury Management Act 1998 as varied from time to time (my emphasis). 9 It was submitted the restriction in cl 10.6 of the Award, that a Member of a superannuation scheme can only receive one benefit, referred only to benefits available under the Award, that is, a partial or permanent disability benefit or a total and permanent disability benefit but not both. It was not a restriction simpliciter. Applicant's motion 10 The applicant's motion was based on the proposition that the respondent was estopped from denying that the applicant was suffering from Total and Permanent Disablement under the Award. It was submitted there was an estoppel by convention and in the alternative, a promissory estoppel. In relation to the former it was submitted that at the time of the applicant's medical discharge by the respondent, both parties proceeded on the basis of a common assumption and understanding, namely, that the applicant was under a total and permanent disablement within the meaning of the Award, with the knowledge and understanding that the applicant would rely on the same, in particular by accepting the medical discharge and the termination of his employment, and any departure therefrom would cause detriment to the applicant. 11 As to the promissory estoppel, it was submitted that by letters of 3 April 2007 and/or 27 August 2007, the respondent represented to the applicant that its medical discharge of him was on the basis of his being under a total and permanent disablement, within the meaning of the Award; the applicant acted in reliance thereon by accepting the medical discharge and the termination of his employment; the respondent knew or intended that the applicant would so rely; and it would occasion detriment to the applicant if that representation was not fulfilled. Consideration 12 I would have thought the respondent was correct in submitting that even if the applicant were successful in his contention that the respondent was estopped from denying that the applicant was suffering from Total and Permanent Disablement under the Award, the question still remains whether there is any entitlement under the Award. That is the key question and one that, for the reasons proffered by the respondent, should be the subject of a preliminary determination. 13 Nevertheless, if the applicant considers there is some utility in pursuing its estoppel points it may do so at the same time the Court hears the respondent's construction point. 14 The Court orders that the issues raised by the parties in their respective motions will be heard and determined separately from the substantive issue. 15 The parties are directed to confer on a timetable for the filing and serving of any material to be relied upon in the preliminary hearing including outlines of submissions and, in consultation with my Associate, a convenient hearing date. 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