Reported Decision : [2001] ACL Rep 320 NSW 7 New South Wales Court of Appeal CITATION : Commissioner of Police v John Leslie May [2001] NSWCA 431 FILE NUMBER(S) : CA 40340/01 HEARING DATE(S) : 22/11/2001 JUDGMENT DATE : 22 November 2001 PARTIES : Commissioner of Police v John Leslie May JUDGMENT OF : Meagher JA at 1; Beazley JA at 2; Foster AJA at 3 LOWER COURT JURISDICTION : Compensation Court LOWER COURT 2315/98 FILE NUMBER(S) : LOWER COURT Hughes J JUDICIAL OFFICER : COUNSEL : R.F. Sutherland SC/A. Kostopoulos - Appellant D.T. Kennedy SC/P Dailley - Respondent SOLICITORS : NSW Police Service - Court & Legal Services - Appellant Taylor & Scott - Respondent CATCHWORDS : Appeal against determination that the applicant was incapacitated for police duties due to the infirmity of major depression and that this was not "duty related". LEGISLATION CITED : Police Regulation Superannuation Act (1906) NSW Workers Compenation Act (1987) CASES CITED: Azzopardi v Tasman UEB Industries Limited, (1985) 4 NSWLR 139 at 155-6 DECISION : Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40340/01 MEAGHER JA BEAZLEY JA FOSTER AJA THURSDAY, 22 NOVEMBER, 2001 COMMISSIONER OF POLICE v JOHN LESLIE MAY Judgment 1 MEAGHER JA: I agree and have nothing further to add. 2 BEAZLEY JA: I agree. I would only add that in relation to the application for bias I have had the opportunity to look at some further parts of the transcript, from what I have read I think this is an application that should never have been brought. 3 FOSTER AJA: This is an appeal from a decision of Judge Hughes of the Compensation Court of New South Wales given on 19 April this year. His Honour had before him an application for determination which had been filed on 19 February 1998 by the applicant, John Leslie May. That application was brought before the Court for determination of whether a prior determination of the delegate for the Commissioner of Police was in error. That determination was to the effect that the applicant was incapacitated for police duties due to the infirmity of major depression and that this infirmity was not "duty related". 4 The phraseology comes from s 10B 93A of the Police Regulation Superannuation Act (1906) to which his Honour made reference. There is no need, in my view, to articulate in these reasons those provisions or the ways in which they have been complied with by the delegate. The question that was posed simply was whether the condition of major depression was within the meaning of that section "duty related". His Honour found at the conclusion of a hearing, which apparently occupied some nine days, that the applicant had relevantly been hurt on duty and that his condition of major depression was within the meaning of that section "duty related". 5 As part of the determination of the case issues raised by s 11A of the New South Wales Workers Compensation Act (1987) fell for consideration. That section provides: "(1) No compensation is payable under this Act in respect of an injury that is psychological injury unless; a) the employment concerned was a substantial case of the injury b) the injury was not wholly or predominantly caused by the reasonable action taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or the provision of employment benefits to workers. (2) A psychological injury is an injury (as defined in section 4), that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system. (3) A worker's employment is not be regarded as a substantial cause of psychological injury merely because the employment is a real or actual cause of the injury. The term "substantial" is used in this sense of real and important. (4) This section does not extend the definition of injury in s 4. In particular this section does not affect the requirement in s. 4 that a disease is not an injury unless it is contracted by the worker in the course of employment." " Transfer" was one such matter and was the appropriate matter for consideration by his Honour in this case. 6 There was, quite obviously, a considerable amount of evidence given in the case directed to the questions of whether the employment had been a substantial cause of the depression suffered by the applicant and whether or not that psychological injury had been caused by reasonable action taken on behalf of the Commission. A number of grounds of appeal were taken and the Court has been provided with extensive written submissions. 7 At the outset of the hearing before the Court the question was raised as to whether the appeal must necessarily founder on the basis of the principles enunciated in Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 at 155-6. The passage from the judgment of Glass JA is well-known: "It is clear from these extracts that numerous pejorative expressions in common usage possess a single meaning and are interchangeable. To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commissioner Judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the Court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court of the Metropolitan District Holden at Sydney: Ex parte white (1966) 116 CLR 644 at 654." 8 It was quite apparent from the grounds of appeal, the written submissions, and the course that oral submissions were taking, that what was being put to the Court was that, in effect, the findings of the learned trial Judge were perverse in the legal sense. It was equally clear from Azzopardi that a claim of perversity, even if established, would not be sufficient to ground the success of this appeal. 9 When this matter was debated the question was put to counsel as to whether he sought to challenge Azzopardi and consequently to seek the leave of this Court that he revisit that decision for the purpose of seeking that this Court overturn it. That leave was sought and refused. The consequence is that the perversity point is simply not available. 10 That being so, counsel was driven back to a submission that there was in fact no evidence to support his Honour's findings. His Honour in relation to s 11A(1)(a) made the quite positive finding, which was supported by other findings in the judgment, that the applicant's employment, particularly in relation to certain aspects of it consisting of undercover and surveillance activities, was a substantial cause of the injury. This was clearly a finding of fact. 11 His Honour also found in relation to s 11A(1)(b) that action relevantly described in the case as transfer action from undercover duties to uniform on the beat duties in a particular area where the applicant had been undertaking undercover duties was clearly unreasonable. That being so any hurdle that might have been presented to the applicant's success by s 11A(b) was as a matter of fact removed. 12 In my view, the submission that there was no evidence which would support his Honour's findings of fact in those two essential respects is, in the circumstances of this case, quite hopeless. There was evidence clearly given on both sides and his Honour at the end, as I have said, of a significantly long hearing accepted the evidence which favoured a finding in favour of the applicant on those matters. The appeal insofar as it relates to the matters I have just discussed must, in my opinion, be refused. 13 It was also submitted that his Honour should have disqualified himself on the basis of apprehended bias. This submission was but faintly put, if, in fact, it was not withdrawn. We have been taken to certain passages in the transcript which, it was submitted, might indicate bias by way of pre-judgment on his Honour's part. I find it sufficient to say that they indicate a robust exchange between bench and bar of the type that does occur from time to time, perhaps couched, at least in one respect, in unfortunate language, but the evidence falls far short, in my opinion, of establishing bias leading to necessity for his Honour to disqualify himself. This ground of appeal, in my opinion, also fails. 14 In the result I would propose that the appeal be dismissed with costs. 15 MEAGHER JA: The order of the Court therefore is that the appeal is dismissed with costs. ******************** 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.