Woollard v SAS Trustee Corporation [2012] NSWIRComm 51

Industrial Relations Commission New South Wales Medium Neutral Citation: Woollard v SAS Trustee Corporation [2012] NSWIRComm 51 Hearing dates: 2 December 2011 Decision date: 25 June 2012 Jurisdiction: Industrial Court of NSW Before: Boland J President at [1], Walton J Vice-President at [125], Kavanagh J at [125] and Backman J at [125] Decision: The Full Bench orders that the matter be delegated to a Member of the Full Bench to take evidence in advance of further hearing before the Full Bench which will then determine the matter in accordance with this decision. Catchwords: APPEAL - POLICE - Application by Phillip Woollard to appeal against a determination made by the SAS Trustee Corporation not to add the infirmity of chronic post traumatic stress disorder to a certificate of incapacity issued under s 10B(2)(a) Police Regulation (Superannuation) Act - allocated for hearing to Haylen J - matter referred by Haylen J to the President under s 193(1) Industrial Relations Act - matter allocated by President to Full Bench - correctness of decision in SAS Trustee Corporation v Hazlewood [2009] NSWIRComm 147; (2009) 188 IR 174 considered - two issues of construction of s 10B(2)(a) raised - first construction issue as to advice of the Commissioner of Police as to notice under s 10B(2)(a) - Held: STC not obliged to accept advice of Commissioner of Police as to notice - Hazlewood decision wrong in this respect - second construction issue as to meaning of notification of injury which has caused the member's infirmity of body or mind - consideration of statutory scheme - Held: s 10B(2)(a) requires notification of an event, an injurious consequence and a connection between the two - where infirmity of body or mind is a disease of gradual onset with no identifiable injurious event, requirement to notify of an event is concomitant with requirement to notify symptomatology provided symptomatology sufficient to demonstrate onset of the disease - Hazlewood decision wrong insofar as it found otherwise - whether chronic post traumatic stress disorder a disease of gradual onset is a question of fact - insufficient evidence to determine whether symptoms notified by the appellant sufficient to indicate onset of post traumatic stress disorder if so - fact that STC included infirmity of major depressive episode on certificate issued under s 10B(2)(a) on basis of appellant's notification of condition of depression means appellant gave notice of injury for the purpose of the sub-section - insufficient evidence to determine whether that notice can be regarded as notice of an injury capable of causing the infirmity of post traumatic stress disorder - matter delegated to a Member of the Full Bench to take further evidence in advance of a further hearing before the Full Bench Legislation Cited: Criminal Appeal Act 1912 Industrial Relations Act 1996 Police Act 1990 Police Regulation (Superannuation) Act 1906 Superannuation Administration Act 1996 Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998 Cases Cited: Amalgamated Wireless (A/sia) Ltd v Philpott (1961) 110 CLR 617; [1961] HCA 31 Australian Conveyor Engineering Pty Limited v Mecha Engineering Pty Limited (1998) 45 NSWLR 606 Australian Education Union v Department of Education and Children's Services (2012) 285 ALR 27; 86 ALJR 217; [2012] HCA 3 Bennett v SAS Trustee Corporation (Full Bench, unreported, IRC 571 of 2010, 9 December 2010) Caterpillar Australia Pty Ltd v Industrial Court of New South Wales (2009) 255 ALR 131 Commissioner of Police v SAS Trustee Corporation (2002) 131 IR 243; [2002] NSWIRComm 31 Commissioner of Police v SAS Trustee Corporation [2002] NSWIRComm 382 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; 35 ALR 151; [1981] HCA 26 Deputy Federal Commissioner of Taxation for the State of South Australia v Ellis & Clark Limited (1934) 52 CLR 85 Federal Broom Co Pty Ltd v Semlitch (1964) 110 CLR 626; [1964] HCA 34 Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 Hazlewood v SAS Trustee Corporation [2008] NSWIRComm 215 Hocine v Minister for Immigration and Multicultural Affairs (2000) 99 FCR 269 Jemema Gas Networks (NSW) Ltd v Mine Subsidence Board [2010] NSWCA 146; (2010) 175 LGERA 16 John Holland Pty Ltd v Industrial Court of New South Wales; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338; (2010) 202 IR 82 Jones v Wrotham Park Settled Estates [1980] AC 74 Jovic v SAS Trustee Corporation [2007] NSWIRComm 102 Lyons v Master Builders Association of NSW Pty Limited (2003) 25 NSWCCR 422 McGhee v Commissioner of Police (No 2) [2010] NSWIRComm 165; (2010) 200 IR 22 McKenzie v SAS Trustee Corporation [2009] NSWIRComm 177 Morley v SAS Trustee Corporation [2007] NSWIRComm 90 Posner v Collector for Inter-State Destitute Persons (Vic) (1946) 74 CLR 416 SAS Trustee Corporation v Hazlewood [2009] NSWIRComm 157; (2009) 188 IR 174 R v Kemp [1957] 1 QB 399; [1956] 3 All ER 249; (1956) 40 Cr App Rep 121 R v Young Rockdale Beef Pty Limited v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 Vickers, Sons & Maxim Ltd v Evans [1910] AC 444 Wollongong Fabrications Pty Ltd v Ramsbottom [2006] NSWCA 279 Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 Category: Principal judgment Parties: Phillip Woollard (Appellant) SAS Trustee Corporation (Respondent) Representation: Mr P O'Rourke of counsel with Mr M Hammond of counsel (Appellant) Mr T Ower of counsel with Ms K Balendra of counsel (Respondent) Walter Madden Jenkins, Solicitors (Appellant) SAS Trustee Corporation (Respondent) File Number(s): IRC 660 of 2010