District Court New South Wales Medium Neutral Citation: Grose v Commissioner of Police (No 1) [2012] NSWDC 215 Hearing dates: 19, 20 September 2012 Decision date: 20 September 2012 Before: Neilson DCJ Decision: (1) The plaintiff was still in the police force at the time the PSAC certified him as incapable of discharging his duties of office. Accordingly, s 10B(2) of the Act is irrelevant to the plaintiff whose entitlement is governed by s 10B(1) and so he was not required to give notice of the injury within six months of the occurrence of the injurious event. [9], [10] (2) Secondly, it is not up to the Commissioner of Police to make a decision under s 10B(2)(a). Only the STC can make such a decision. [11] - [14] Page v Commissioner of Police (No 1) [2012] NSWDC 130 considered. (3) Even if a defence based on s 10B(2) were applicable to the plaintiff, which it is not, it could not be dealt with under UCPR 13.4(1) because it is a substantive defence and would require an order for a separate trial of that issue under UCPR 28.2 Catchwords: POLICE - Statement of claim for superannuation or gratuity - Notice of motion to summarily dismiss proceedings - Plaintiff still a serving police officer when certified incapable of discharging duties of office - Defence based on failure of plaintiff to notify defendant within six months of receiving injury causing infirmity - Whether legislation applied to plaintiff Legislation Cited: Police Regulation (Superannuation) Act 1906, ss 10B, 14B, 21 Cases Cited: Page v Commissioner of Police (No 1) [2012] NSWDC 130 SAS Trustee Corporation v Hazlewood [2009] NSWIRComm 157 Woollard v SAS Trustee Corporation [2012] NSWIRComm 51 Category: Interlocutory applications Parties: Brett Grose (Plaintiff) Commissioner of Police (Defendant) Representation: Mr T Ower (Plaintiff) Mr M Hutchings (Defendant) Oates Legal (Plaintiff) McCabes Terrill Lawyers (Defendant) File Number(s): RJ354/11 Judgment 1On 30 August 2012 the defendant filed a notice of motion. The first prayer in the notice of motion is this: "That pursuant to rule 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) proceedings RJ00354/2011 be summarily dismissed." UCPR 13.4(1) provides this: "If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim." The essence of the application is really not based on any of the paragraphs of rule 13.4(1). In essence, the defendant maintains that it has a "knock-out" defence. That defence is contained in par 36 of the "first amended defence" filed on 8 May 2012. 2The proceedings were commenced by statement of claim filed on 7 September 2011. An initial defence was filed on 7 November 2011. Pursuant to UCPR 14.4, if the plaintiff wished to file a reply to the defence it had to be filed within fourteen days of 7 November 2011. Pursuant to UCPR 14.27, if there be no reply by a plaintiff to a defence there is an implied joinder of issue on that defence. Accordingly, it can be seen that pleadings closed fourteen days after 7 November 2011. The defendant did not obtain leave to file the document entitled "First Amended Defence". However, I put that to one side. 3Paragraph 36 of the First Amended Defence is this: "In further answer to the whole of the Statement of Claim, the defendant denies the plaintiff is entitled to any superannuation allowance or gratuity due to his failure to comply with s 10B of the Police Superannuation (Regulation) Act 1906 (NSW)." I assume the defendant meant to refer to the Police Regulation (Superannuation) Act 1906, which is the statute under which the plaintiff brings his application. Counsel for the defendant has advised me that the defendant relies on s 10B(2)(a) of the Police Regulation (Superannuation) Act 1906 ("the Act"). 4Some facts and allegations need to be considered. The plaintiff is a former sergeant of police. He was born on 17 March 1966. He is now forty-six years old. He was attested as a probationary constable of police on 19 December 1986 when he was twenty years old. In the statement of claim the plaintiff relies upon a number of "stressors" that he experienced in the police force between 1986 and 2010. According to par 30 of the statement of claim, the plaintiff last worked as a police officer on 11 July 2010 when he went on sick report. According to exhibit 1 the plaintiff last worked on 30 June 2010. According to [2] of the affidavit of Ms Patti, the solicitor for the defendant, which is exhibit 1, the plaintiff applied for a medical discharge on 19 November 2010. According to the statement of claim, the Police Superannuation Advisory Committee on 30 June 2011 certified that the plaintiff was incapable of discharging the duties of his office on account of two infirmities, the first being osteoarthritis of the right knee and the second being a chronic post-traumatic stress disorder. On 17 July 2011 the Commissioner of Police, by his delegate, determined that the suffering by the plaintiff of osteoarthritis of the right knee was caused by the plaintiff's having been hurt on duty, but the condition of chronic post-traumatic stress disorder was not caused by the plaintiff's having been hurt on duty. According to exhibit A, the plaintiff was medically discharged from the police force on 21 July 2011. 5The plaintiff's application for medical discharge of 19 November 2010 is an annexure to exhibit 1. As I have already indicated, the evidence is that it was made on 19 November 2010. Page 3 of the application asks the plaintiff whether he was currently incapable of discharging all operational duties. To that question the plaintiff responded "Yes". He was then asked a number of questions concerning that. The first medical condition which he cited was "chronic post-traumatic stress disorder, worsening depressive symptomatology and recurrent panic attacks", and then stated that he had not lodged a claim and that the date of injury was 30 June 2010. On p 4 of the same document the plaintiff said that the date of injury was "notional", which is a shorthand way of saying that it was a deemed date of injury and the plaintiff was asked whether he believed that the injury was "HOD", which is shorthand for "hurt on duty". To that question the plaintiff responded "Yes". If the notional date of injury was 30 June 2010 then the plaintiff's application for medical discharge of 19 November 2010 was within six months of the "notional date of injury". 6The notice of motion must fail for a number of reasons. The first reason is this: the phrase "member of the police force" is defined in s 1(2) of the Act as meaning: "a police officer within the meaning of the Police Act 1990 or a member of the New South Wales Police Force who was a contributor immediately before being transferred to an administrative office under section 67 of that Act." The word "contributor" is defined as meaning "contributor to the Fund". "Fund" is described as meaning the "Police Superannuation Fund established under this Act". 7Section 10(1) is in the following terms: "In this section: ...... "disabled member of the police force" means: (a) a member of the police force who is discharged after being certified, pursuant to section 10B(1), to be incapable, from a specified infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14(1) of the Police Act 1990, or (b) a former member of the police force who resigned or retired and who, according to a certificate given pursuant to s 10B(2) at any time after the member's resignation or retirement, was incapable, from any infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14(1) of the Police Act 1990 at the time of the member's resignation or retirement, that infirmity being determined, pursuant to section 10B(3) or on appeal, to have been caused by the member being hurt on duty or the former member having been hurt on duty when he or she was a member of the police force, as the case may be." The first thing to do is, of course, to decry the poor standard of grammar of the draughtsman who did not realise that a gerund is a verbal noun and takes the possessive case and not either the subjective or objective case. 8The next thing to point out is that s 10(1) clearly refers to s 10B and distinguishes between a serving member of the police force who is certified to be incapable of discharging the duties of his office and is then discharged from the police force, and a former police officer who resigned or retired and subsequently obtained a certificate under s 10B to attest to his having been, at the time of his resignation or retirement, incapable of discharging the duties of his office. 9Section 10B(1) and (2) are in the following terms: "(1) An annual superannuation allowance or gratuity must not be granted under section 10 to a member of the police force who is discharged unless STC (having regard to medical advice on the condition and fitness for employment of the member) has certified the member to be incapable, from a specified infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14(1) of the Police Act 1990. (2) An annual superannuation allowance or gratuity must not be granted under section 10 to a former member of the police force who resigned or retired unless: (a) the former member notified the Commissioner of Police before the member's resignation or retirement and within 6 months of receiving the injury which has caused the member's infirmity of body or mind, of that injury, and (b) if the regulations so require, the notification was in the prescribed form, and (c) STC (having regard to medical advice on the condition and fitness for employment of the member) has certified that the former member was incapable, from that infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14(1) of the Police Act 1990 at the time of the member's resignation or retirement." Clearly, s 10B(1) applies to a police officer who is still a member, that is, still a contributor to the Police Superannuation Fund and is still in the police force at the time that he is certified to be incapable of discharging the duties of his office. 10Section 10B(2) clearly refers to a member of the police force who firstly resigned or retired and subsequently made a claim for a "hurt on duty" pension pursuant to s 10B of the Act. It is persons in the latter category who are required to have given notice of an injury within six months of receiving the injury. Those who are entitled to a pension under s 10B(1) are not prevented from obtaining a pension if they have not given notice of injury within six months of the occurrence of the injurious event. Therefore, s 10B(2) is completely irrelevant to the current plaintiff and the current plaintiff's entitlement is not governed by s 10B(2) but by s 10B(1). 11The second reason why this application cannot succeed is because it is not up to the Commissioner of Police to make a decision under s 10B(2)(a). Such a decision can only be made by the STC, being the acronym used in the Act for "the SAS Trustee Corporation continued under the Superannuation Administration Act 1996". 12The Act clearly gives the general power of making decisions under the Act to the STC but also gives to the Commissioner of Police certain powers of decision-making. That can be conveniently seen by a consideration of s 21 of the Act, which gives this Court the power to make determinations. Section 21(1) is in the following terms: "A person who considers himself or herself aggrieved by: (a) a decision made by STC on a matter that arises under this Act by reason of a member of the police force being hurt on duty, or (b) a decision made by the Commissioner of Police under s 10A(1), 10B(3)(a), s 12C(1), 12C(2) or 12D(4)(a), may, within the period of 6 months after the person is notified of that decision, apply to the District Court for a determination in relation to that decision." 13Both s 21(1) and the terms of the Act itself make it clear that the Commissioner's only role under s 10B is to decide whether the suffering by the member or former member of the police force of the infirmity certified by the Police Superannuation Advisory Committee was caused by the member's having been hurt on duty and to determine the date or dates on which the member or former member was hurt on duty. The Commissioner has no role to play under s 10B(2)(a). 14I myself found to that effect, probably obiter dictum, in Page v Commissioner of Police (No 1) [2012] NSWDC 130. The relevant part of that judgment is [52] to [60]. In that judgment I discussed at some length the decision of the IRC in SAS Trustee Corporation v Hazlewood [2009] NSWIRComm 157. Subsequently the IRC itself has, at least in part, overruled that earlier decision, in Woollard v SAS Trustee Corporation [2012] NSWIRComm 51. 15That decision contains a judgment of the President, Boland J, and a joint judgment of the Vice President, Walton J, and Kavanagh and Backman JJ. There is some inconsistency between the judgment of the President and that of the majority. Suffice to say that the majority held that the decision under s 10B(2)(a) has to be made by the STC. At [129] the majority said this: "We have mentioned this background to indicate that, in the ordinary course, the procedures adopted here were, in our view, undesirable. Nonetheless, having had the benefit of considering the draft judgment of Boland J, President, in this matter, we consider that the Full Bench should consider, at least at a preliminary stage of the proceedings, the correctness of Hazlewood. This view has been reached solely because his Honour's reasoning has led us to the view that, in one respect, the judgment in Hazlewood was incorrect: the STC was not obliged to accept the advice of the Commissioner of Police as to notice under s 10B(2)(a). The STC must satisfy for itself whether the requisite notice has been given by the former member of the police force. This must result in a conclusion that, in this respect, the judgment in Hazlewood was wrong." Therefore it is not open to the current defendant, the Commissioner of Police, to raise a defence based on s 10B(2)(a) even if the section were applicable to the current plaintiff, which it is not. 16The third point which dooms this present application to failure is that, if such were a relevant defence, it is a substantive defence that cannot be dealt with pursuant to UCPR 13.4(1). There would have to be an order for a separate trial of that issue pursuant to UCPR 28.2. 17No one wants any further reasons, do they? OWER: No your Honour. HIS HONOUR: For those reasons the Notice of Motion filed on 30 August 2012 is dismissed. I order the defendant to pay the plaintiff's costs of the motion. OWER: As the Court pleases. ********** 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. Decision last updated: 18 April 2013