New South Wales Court of Appeal CITATION: Commissioner of Police v Goodwin [2008] NSWCA 345 HEARING DATE(S): 27 November 2008 JUDGMENT DATE: 27 November 2008 JUDGMENT OF: Allsop P at [16], [18]; Hodgson JA at [1]; Gyles AJA at [17] EX TEMPORE JUDGMENT DATE: 27 November 2008 1. Leave to appeal be granted. 2. Appeal allowed. DECISION: 3. The orders of the District Court on 13 June 2008 be set aside. 4. The respondent to pay the costs of the appeal. 5. The respondent to have a Suitor's Fund certificate if otherwise entitled. CATCHWORDS: PROCEDURE – Amendment – Leave to appeal sought – Whether error of law – Whether leave to appeal should be granted – Finality of litigation. LEGISLATION CITED: District Court Act s142N Police Regulation (Superannuation) Act 1906 s 1 CATEGORY: Principal judgment PARTIES: COMMISSIONER OF POLICE (appellant) Daniel GOODWIN (respondent) FILE NUMBER(S): CA 40259/08 COUNSEL: T OWER (appellant) A P L NAYLOR (respondent) SOLICITORS: Henry Davis York (appellant) Oates & Smith (respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC RJ4719/01 LOWER COURT JUDICIAL OFFICER: O'Toole J LOWER COURT DATE OF DECISION: 13 June 2008 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40259/08 ALLSOP P HODGSON JA GYLES AJA THURSDAY 27 NOVEMBER 2008 COMMISSIONER OF POLICE v Daniel GOODWIN Judgment 1 HODGSON JA: This is an application for leave to appeal pursuant to s142N of the District Court Act from a decision of O'Toole DCJ given on 13 June 2008 giving leave to the respondent to plead an amended statement of claim. That leave was given after the primary judge had reserved her decision, following a case that had run for a number of days in which the respondent was seeking a finding that he had been hurt on duty within the meaning of s 1 of the Police Regulation (Superannuation) Act 1906. 2 The basis on which the respondent was claiming that he had been hurt on duty was that the major depression from which he was suffering was caused by or substantially contributed to by post-traumatic stress disorder, which was itself the result of a number of traumatic incidents that had occurred during his service with the New South Wales Police Force. 3 The amendment which was allowed by the judge's order was an amendment which added to the list of incidents occurring in the respondent's service with the Police Force an incident when he was required to surrender his police appointments, including his gun. 4 That was a matter which had been referred to in oral evidence under cross-examination by the respondent, in reports from the respondent's medical expert and from the respondent's GP, and also in clinical notes from a hospital. However, the respondent's evidence did not suggest that this incident was itself an incident that contributed to the respondent's post-traumatic stress disorder, or otherwise was a work incident that was a contributing factor to his depression. 5 The possibility that the incident may have some significance was raised in oral submissions before the primary judge reserved her decision, but was not pursued by the respondent. 6 After the primary judge had reserved her decision, the primary judge recalled the parties and raised the question whether there should be an amendment of the kind that was ultimately granted. 7 In response to that suggestion the respondent applied for the amendment. It was opposed by the applicant, but was granted by the primary judge. 8 For the applicant before us, it has been submitted that there was error of law in the primary judge's decision, in particular in not having regard to the circumstance that the case had been presented by the respondent and contacted over a number of days by the respondent on a basis that did not include this incident as a work incident contributing to the respondent's condition, and in not giving weight to the consideration that the applicant had conducted its case over the whole of that time on the same basis. 9 It was submitted that, while the primary judge referred to submissions from the applicant that to allow the amendment would prejudice the applicant, she did not have regard to that matter, or if she did, only had regard to it in relation to the possibility that the applicant would have to call more witnesses and incur further costs. 10 For the respondent, it was submitted that leave should be refused, or if leave was granted the appeal should be dismissed because no error of law was disclosed, and because any prejudice to the applicant can be overcome by permitting the applicant to call further evidence. 11 It was submitted also for the respondent that, if there were any error of law by the primary judge, that could be corrected on an appeal brought after a final decision, and it was not a case in which leave should be granted to appeal from an interlocutory decision on a matter of practice and procedure. 12 In my opinion leave should be granted and the appeal should be allowed. 13 In my opinion there is error of law disclosed in the decision of the primary judge, in that she did not have regard to substantial relevant considerations to which she should have had regard, in particular the circumstance that this case lasting a number of days had been conducted by the respondent on a particular basis and had been met by the applicant on the same basis, the consideration that the widening of the case had not been sought by the respondent, the circumstance that there was no medical evidence in support of the wider case, and the circumstance that the prejudice to the applicant from allowing the amendment was not merely a prejudice of having possibly to call more evidence and recall witnesses, but a prejudice arising from having conducted the case for the previous days on a different basis. 14 In my opinion it is an appropriate case for leave to be granted, because the amendment would in all probability result in further lengthy and expensive hearing of this case, and could result in some confusion of the evidence and issues for ultimate determination. 15 The disallowing of the amendment does not of course mean that the incident which is the subject of the amendment is to be disregarded. It can of course be regarded as part of the history of the respondent, and part of the material to be taken into account in determining whether the traumatic incidents on which the respondent relies are a substantial contributing factor to his present condition. 16 ALLSOP P: I agree with Justice Hodgson. 17 GYLES AJA: I also agree. I only add to the circumstances to which his Honour has drawn attention, the finality of litigation. This affects more than just prejudice to the parties. It seems to me that her Honour looked at the issue through the eyes only of the effect upon the parties and did not have independent regard to the principle of finality of litigation and the effect that reopening cases has on the general administration of justice. 18 ALLSOP P: The orders of the court are: 1. Leave to appeal be granted. 2. Appeal allowed. 3. The orders of the District Court on 13 June 2008 be set aside. 4. The respondent to pay the costs of the appeal. 5. The respondent to have a Suitor's Fund certificate if otherwise entitled. oOo 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.