Marriott v. Commissioner of Police [2006] NSWCA 219

New South Wales Court of Appeal

CITATION: Marriott v. Commissioner of Police [2006] NSWCA 219

HEARING DATE(S): 28 July 2006

JUDGMENT DATE: 28 July 2006

JUDGMENT OF: Hodgson JA at 1; Ipp JA at 33; Bryson JA at 34

EX TEMPORE JUDGMENT DATE: 07/28/2006

DECISION: (1) Appeal allowed. (2) Orders below set aside. (3) Respondent to pay the appellant's costs of the appeal. (4) The matter is remitted to the Tribunal for decision in accordance with these reasons.

CATCHWORDS: POLICE - Conditions of service - Hurt on duty - Appeal to GREAT - Whether "injury" through aggravation of disease - Whether incapacity caused by that injury - Whether GREAT addressed these questions - Whether error of law shown.

PARTIES: Allen John Marriott - appellant Commissioner of Police - respondent

FILE NUMBER(S): CA 40350/05

COUNSEL: Mr. I. Roberts SC with Mr. G. Leveck for appellant Ms. A. Stenmark SC with Mr. A. Kostopoulos for respondent

SOLICITORS: Harris Wheeler, Newcastle for appellant NSW Police Legal Services, Parramatta for respondent

LOWER COURT JURISDICTION: Government & Related Employees Appeal Tribunal

LOWER COURT FILE NUMBER(S): GREAT NO.P48/97

LOWER COURT JUDICIAL OFFICER: Members S.Trusty and B. Kenny

LOWER COURT DATE OF DECISION: 19 April 2005

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40350/05 GREAT NO.P48/97

HODGSON JA IPP JA BRYSON JA

Friday 28 July 2006 MARRIOTT V. COMMISSIONER OF POLICE Judgment 1 HODGSON JA: The appellant commenced a period of absence from his then duties as a police officer on 13 May 1996. He claimed the absence as hurt on duty, and on 11 February 1997 a delegate for the Commissioner of Police decided that the absence was not duty-related. On 25 February 1997 he lodged an appeal with the Government and Related Employees Appeal Tribunal, which I will call the Tribunal, against that decision. 2 On 1 April 1997, the appellant made an application for medical discharge from the police force. The Police Superannuation Advisory Committee certified him as incapable of discharging his duties due to an infirmity identified as "anxiety-based disorder with elements of post-traumatic stress disorder and panic disorder" on 27 January 1998. 3 On 12 February 1998, which was the date of his discharge, a delegate for the Commissioner of Police decided that the infirmity that led to his discharge was not duty-related. 4 On 5 March 1998, the appellant lodged an application for determination with the Compensation Court against that decision, but lodged no appeal with the Tribunal. That is perhaps not surprising, because when he was notified of the decision he was advised that, if he wished to challenge it, the appropriate course was to make an application to the Compensation Court. 5 Ultimately, that application was not pursued, it seems because there were questions as to the jurisdiction of that Court in the light of extremely complex provisions concerning appeals from such decisions. In the result, it may be that the appellant has entirely lost a right to appeal from that decision, in circumstances where he complied with the advice he was given in the document that advised him of the decision. If that is so, then it is extremely regrettable and a matter which, if possible, something should be done about. 6 On 19 April 2005, the Tribunal decided it had jurisdiction only in relation to the appellant's appeal in respect of his period of absence from 13 May 1996 to the date of his discharge on 12 February 1998, and not in relation to any challenge to the decision concerning his superannuation rights on discharge. The Tribunal disallowed the appeal which it found it had jurisdiction to deal with. 7 The appellant appeals from that decision on the following grounds: 1. The Tribunal erred in law in that: (i) the hearing of the appeal proceeded upon the basis that the Tribunal was bound by a certificate given by the Police Superannuation Advisory Committee on 27 January 1998 to the effect that the appellant was incapable of discharging his duties due to an infirmity specified as "anxiety based disorder with elements of post traumatic stress disorder and panic disorder". (ii) The Tribunal, subsequent to the completion of the hearing of the appeal, determined it was not bound to accept that (as at 27 January 1998) the appellant suffered the infirmity referred to above. (iii) In the circumstances the Tribunal should have given the parties the opportunity to adduce further evidence, or make further submissions.