Miller v Commissioner of Police NSW [2004] NSWCA 356

New South Wales Court of Appeal

CITATION : Miller v Commissioner of Police NSW [2004] NSWCA 356 HEARING DATE(S) : 7 September 2004 JUDGMENT DATE : 30 September 2004

JUDGMENT OF : Mason P at 1; McColl JA at 2; Hamilton J at 34 DECISION : 1. Appeal dismissed with costs 2. As to the costs order: (a) Appellant's legal representatives to undertake that they will not look to the appellant for his costs of the appeal and that they will indemnify him in respect of the order that he pay the respondent's costs of the appeal. (b) The undertaking referred to in 2(a) to be given in writing by being forwarded to the Registrar of the Court of Appeal within two working days of 30 September 2004. (c) Absent the undertaking referred to in 2(a) the Court will consider issuing a show cause notice under Part 52A r 43 to the appellant's legal representatives.

CATCHWORDS : APPEALS - error of law - requirement that error of law be dispositive of appeal - COURTS - JUDGES - requirement that judicial power be exercised in resolution of "legal" controversy. (D) Government and Related Employees Tribunal Act 1980 (NSW) s 54 Police Act 1990 (NSW) Pt 8A, s 170, s 170(2)(c), s 186 LEGISLATION CITED : Police Regulation (Superannuation) Act 1906 (NSW) s 1(2) Supreme Court Rules 1970 (NSW) Pt 52A r 43 Workers Compensation Act 1987 (NSW) s 4, s 9(1), s 9A, s 9A(1), s 11A, s 11A(1) Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 FAI Traders Insurance Co Ltd v FAI Workers Compensation (NSW) Ltd and Ors (NSW Court of Appeal, unreported, 16 July 1996, BC9603498) Gardner v Dairy Industry Authority of NSW (1977) 52 ALJR 180 Minister Administering the Crown Lands Act v Deerubbin LALC (1998) 43 NSWLR 249 CASES CITED : R v Home Secretary; Ex parte Salem [1999] 1 AC 450 Secretary to the Department of Human Services v Magistrates' Court at Melbourne [2002] VSCA 171; (2002) 6 VR 140 Sun Life Assurance Co of Canada v Jervis [1944] AC 111 Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195 Victims Compensation Fund Corporation v District Court of New South Wales and Anor [2002] NSWCA 355 Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 PARTIES : Ian Cameron Miller (Appellant) Commissioner of Police NSW (Respondent) FILE NUMBER(S) : CA 41114/03 COUNSEL : B J Gross QC/ P Dailly (Appellant) B M J Toomey QC (Respondent) SOLICITORS : Walter Madden Jenkins (Appellant) NSW Police Service (Respondent)