Industrial Relations Commission of New South Wales CITATION: Police Association of New South Wales on behalf of Craig Clifton v NSW Police Force [2009] NSWIRComm 220 PARTIES: Police Association of New South Wales on behalf of Craig Clifton (Applicant) NSW Police Force (Respondent) FILE NUMBER(S): IRC2401 of 2008 CORAM: Kavanagh J CATCHWORDS: POLICE - Final Orders to give effect to Decision - supervening event being the payment of total and permanent disablement benefit - new payment made by another fund held by an insurer - Crown Employees (Police Officers Death and Disability) Award 2005 - effect of clauses 7, 9 and 10 - Decision gives entitlement to correct payment for partial and permanent disablement - Decision not affected by supervening event - effect of clause 10.6 of Award consideration - applicant presses for Orders - Orders given in accordance with Decision - Stay granted LEGISLATION CITED: Industrial Relations Act 1996 HEARING DATES: 17th December 2009 EXTEMPORE JUDGMENT DATE: 17 December 2009 Mr I C Latham of counsel (applicant) Messrs Baker & Edmunds LEGAL REPRESENTATIVES: Mr A Britt of counsel (Respondent) Messrs Blake Dawson JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Kavanagh J Thursday 17 December 2009 Matter No IRC 2401 of 2008 POLICE ASSOCIATION OF NEW SOUTH WALES ON BEHALF OF CRAIG ANDREW CLIFTON v NEW SOUTH WALES POLICE FORCE Application by the Police Association of New South Wales on behalf of its member Craig Andrew Clifton for recovery of money under section 365 of the Industrial Relations Act 1996 EX TEMPORE DECISION (Final Orders) [2009] NSWIRComm 220 1 This matter was listed for the entering of Orders arising from a Decision of this Commission dated 27 November 2009. On that occasion, there was an application made by Mr A. Britt of counsel on behalf of the respondent for the Commission to refrain from delivering its Decision because of supervening events. After considering submissions, the Decision was delivered and the parties were required to draft Consent Orders. 2 Today, the matter was listed for the entering of Consent Orders but there was no agreement. Once again Mr Britt, on behalf of his client, submitted as to the supervening event and requested the Commission not enter Orders in accordance with its findings in the Decision. 3 Reliance is placed by Mr Britt on an affidavit of David Lloyd sworn 16 December 2009 (his instructing solicitor). Attachments to that affidavit reveal, since the matter was litigated, on 9 November 2009, Mr Clifton received a further payment for total and permanent disablement, which payment appears to have been made in accordance with the provisions of the Crown Employees (Police Officers Death and Disability) Award 2005 from a fund set up by the New South Wales Police with First State Super in the form of an insurance scheme (cl 10.1). 4 The insurance scheme's payment to Mr Clifton of a lump sum benefit was for the amount of $621,928 paid because of a determination by the insurer under cl 7 of the award that Mr Clifton suffered a total and permanent disablement. Mr Clifton had received under the Award a payment for a partial and permanent disability under cl 9.4. The Decision in effect corrected what was the level of benefit Mr Clifton was entitled to receive but under cl 9.3. 5 The applicant, through his Counsel, Mr I.C. Latham, has placed before me draft Orders in accordance with my determination. Those draft Orders require the partial and permanent disability benefit paid by the New South Wales Police to Mr Clifton be increased from the amount of $172,612.44 to the sum of $462,601.34. Therefore, the respondent in effect will have to pay a balance of $289,988.90 plus interest. 6 As to the supervening event, Mr Britt, Counsel for the New South Wales Police, draws the Court's attention to clause 10 of the award. Clause 10 addresses benefits payable under an insurance scheme from which monies for total disablement are paid. The monies for the payment of partial and permanent disability (cl 9.3) come from a different fund. 7 Clause 10.6 of the said Award states: Members can only receive one benefit either a "partial and permanent disability benefit" or "total and permanent disablement benefit"1. Receiving a "partial and permanent disability benefit" or "total and permanent disability benefit" discharges the liability of the alternative party for the relevant benefit payable. 8 On a reading of cl 10.6, Mr Britt submits, given Mr Clifton has received in the intervening period before final Orders a total and permanent disablement benefit which is larger, he should not therefore receive orders in accordance with my reasoning for an alternative payment under cl 9.3 for his partial and permanent disablement. The difficulty I have with Mr Britt's submission is that, it is my view, cl 10.6 does not read as he submits it should be read. Rather, it appears to me Mr Clifton having received a partial and permanent disability benefit that payment discharged the liability of the alternative party (the insurer) to pay an alternative benefit for permanent disablement. 9 Whatever is the proper reading of the second sentence of cl 10.6 , that does not have any effect on the litigation before me, namely, what was the appropriate benefit Mr Clifton should have been paid for his partial and permanent disability. This is especially so as the applicant presses for Orders arising from my Decision. 10 The respondent objects to any order for costs contending the applicant by his own action has caused this difficulty. Evidence before me revealed many of the acts leading to these payments were taken on behalf of Mr Clifton either by the Police Force or the Police Association of NSW. 11 Accordingly, I intend to issue Orders in accordance with those placed before me by the applicant with some adjustment as to the relevant dates. 12 I make the following Orders: 1. The applicant (Mr Clifton) qualifies for a payment under cl 9.3 of the Crown Employees (Police Officers Death & Disability) Award 2005. 2. The respondent has breached cl 9.3 of the Award. 3. The respondent is to pay the applicant the amount of $462,601.34 less the off-duty partial payment disability benefits in the amount of $172,612.44 already paid being a balance of $289,988.90. 4. The respondent is to pay the applicant interest on the amount in Order No. 3 ($289,988.90) from the date of discharge, 8 April 2008 to the date of Decision 27 November 2009. 5. The respondent shall pay the applicant's costs as agreed or assessed in these proceedings. 6. The respondent has applied for a Stay of the Orders so as to file an Appeal application. I grant the Stay application. 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.