District Court New South Wales Medium Neutral Citation: Wilson v Commissioner of Police [2013] NSWDC 176 Hearing dates: 8 April 2013 Decision date: 08 April 2013 Before: Neilson DCJ Decision: Application by defendant for costs refused Catchwords: POLICE - Proceedings for determination following decision by Commissioner that plaintiff not HOD - Application by defendant for costs - Applicable legislation governing power to order costs Legislation Cited: Police Regulation (Superannuation) Act 1906 s 21 District Court Act 1973 s 142K Cases Cited: Nikolov v Poulos Bros (Wholesale) Pty Ltd (2000) 19 NSWCCR 329 Skene v Coles Supermarket Pty Ltd (2000) 21 NSWCCR 54 Category: Costs Parties: Lisa Wilson (Plaintiff) Commissioner of Police (Defendant) Representation: Mr M Hammond (Plaintiff) Mr M Hutchings (Defendant) Kim Smith & Associates (Plaintiff) McCabes (Defendant) File Number(s): RJ699/10 Judgment 1This is an application for costs by the defendant following upon my granting leave to the plaintiff earlier today to discontinue the proceedings brought by the plaintiff against the defendant. 2The plaintiff, Lisa Wilson, is a former senior constable of police. She was attested as a probationary constable of police on 25 March 1988 and thereupon became a contributor to the Police Superannuation Fund established under Police Regulation (Superannuation) Act 1906 (the Police Act). She voluntarily resigned from the New South Wales Police Force with effect on 27 November 1999. 3On 26 August 2010 the Police Superannuation Advisory Committee, established under the Police Act, certified that as a result of the infirmity of "major depressive disorder" the plaintiff was incapable of discharging the duties of her office at the time of her resignation. 4On 10 September 2010 the defendant determined, by his delegate, that the suffering by the plaintiff of the certified infirmity of "major depressive disorder" was not caused by her having been hurt on duty. Aggrieved by that decision, the plaintiff brought an application to this Court by statement of claim filed on 7 December 2010. It is those proceedings that the plaintiff sought leave to discontinue this morning. 5The proceedings were, in fact, pursuant to s 21 of the Police Act. Section 21 was inserted into the Act by Act No 133 of 1979, the Police Regulation (Superannuation and Appeals) Amendment Act 1979. That Act obtained Royal assent on 13 November 1979 and commenced on 21 November 1979. Initially the jurisdiction under s 21 was granted to the Workers Compensation Commission of New South Wales; that is, the body that first bore that title. That body was a court. The current Workers Compensation Commission is not. 6The original Workers Compensation Commission was both a court administering justice in respect of claims for workers compensation and an administrative body which administered the operation of the workers compensation legislation. Someone perceived that there might be a conflict of interest between a body of judges deciding cases and the same body of judges having an administrative role. 7In 1984 the original Commission was abolished. Its judicial function was taken over by the Compensation Court of New South Wales, constituted under the Compensation Court Act 1984, and the administrative role was taken over by an administrative body initially called the State Compensation Board and now known as the WorkCover Authority of New South Wales, an administrative body which has grown like Topsy from an original 30 public servants. 8At the time of the abolition of the original Commission and the hiving off of its judicial business to the Compensation Court of New South Wales, jurisdiction under s 21 of the Police Act was granted to that Court. When the determination of workers compensation matters was taken from the Compensation Court and given to the new Workers Compensation Commission, there was jurisdiction under a number of Acts which remained with the Compensation Court. This became known as the "residual jurisdiction" of the Court. 9With the abolition of the Compensation Court by the Compensation Court Repeal Act 2002 with effect from 1 January 2004, the "residual jurisdiction" of the Compensation Court was transferred to this Court. The relevant legislation is contained in Pt 3 Div 8A of the District Court Act 1973. That has the somewhat misleading title of "Residual Jurisdiction of Court", but it should have been more appropriately called the Transferred Jurisdiction of the Court. 10That short trip into legal history is necessary when one considers the power of the Court to order costs as sought by the defendant. Section 142H of the District Court Act provides that certain divisions of Pt 3 of the Act are not to apply to proceedings in the Residual Jurisdiction of the Court. Section 142I is in these terms: "For the purposes of exercising its residual jurisdiction, the District Court has the same powers, authorities, duties and functions as the Compensation Court had under the Compensation Court Act 1984 immediately before 1 January 2004. The powers confirmed by this section are not limited by any other provisions of this Division." Section 142J re-enacts certain provisions that were contained in the Compensation Court Act 1984. Section 142K is headed "Costs Under Other Acts" and is in these terms: "Section 112 of the Workplace Injury Management and Workers Compensation Act 1998 extends to any proceedings in the residual jurisdiction of the Court (not just proceedings under that Act), and in its application to proceedings under any other Act, is not limited by section 111A (Costs provisions apply only to existing claim matters) of that Act." 11I should say two things about that provision. First, s 111A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) has been repealed. The power of the Compensation Court to award costs was always provided by s 18 of the Compensation Court Act 1984. Immediately prior to that Court's abolition, s 18 was in the following terms: "Section 112 of the Workplace Injury Management and Workers Compensation Act 1998 extends to any proceedings in the Court (not just proceedings under that Act), and in its application to proceedings under any other Act, is not limited by section 111A (cost provisions apply only to existing claims) of that Act." Accordingly, s 142K of the District Court Act 1973 re-enacts s 18 of the Compensation Court Act 1984. 12Section 112 has had a long and tortured history. Its origins are contained in s 38(g) of the Workers Compensation Act 1926. That provided that the Commission had power to: "make such order as to payment of costs as it may think just, the extent of the fees and costs actually incurred or to be incurred by the worker, and may assess the amount of such costs." There were then limitations as to what costs could be ordered and the final provision was this: "The Commission shall not order the payment of costs by a worker unless it is satisfied that his application was frivolous or vexatious or was made fraudulently or without proper justification." Section 18 of the Compensation Court Act 1984 as initially enacted was this: "(1) Subject to this section, the Court may in any matter make such order as to the payment of fees or costs as it thinks just and may assess the amount of those fees or costs. (2) Without affecting the generality of subsection (1), the Court may, in such circumstances as are specified in the rules, order the payment of fees or costs by a legal representative. (3) Subject to section 24(1)(b), the Court shall not order the payment of fees or costs by (a) an applicant for compensation under the Workers Compensation Act 1926; or (b) an appellant (not being an employer or an insurer) against an award or order or a determination, ruling, direction or decision under that Act, unless it is satisfied that the application or appeal was frivolous or vexatious or was made fraudulently or without proper justification. (4) Fees and costs included in an order or assessment under subsections (1) or (2) shall not, where provision is made for the like fees and costs in the scales applicable to proceedings in the Supreme Court in the Common Law division, exceed the fees and costs provided for in the highest of those scales except with the approval of the Court or the officer taxing the fees and costs." 13With the enactment of the Workers Compensation Act 1987 (the 1987 Act) s 18(3) of the Compensation Court Act was repealed, but the same protection for workers was transferred to the 1987 Act. Section 112 of the 1998 Act clearly shows its provenance in these earlier legislative provisions. Subsections (3) and (4) are as follows: "(3) Subject to this section, the Court may not order the payment of costs by a person claiming compensation unless the Court is satisfied that the application for compensation was frivolous or vexatious, fraudulent or made without proper justification. (4) If the Court is satisfied that a part only of any such application for compensation was frivolous or vexatious, fraudulent or made without proper justification, the Court may order the claimant to pay the costs relating to that part of the application." There are further provisions but they are not currently relevant. 14The defendant very properly submits that to make an order for costs in his favour he must establish, on the balance of probabilities, that the plaintiff's application to this Court was either frivolous or vexatious, fraudulent, or without proper justification. The general law relating to costs following the event and the provisions of both the Civil Procedure Act 2005 and the UCPR do not apply in the current case. 15The plaintiff submits that the only applicable piece of legislation is s 21 of the Police Act itself. Subsections (8) and (9) of s 21 are in the following terms: "(8) The District Court, after hearing an application under the section, may assess the costs of the successful party to the application (including costs of representation and witness expenses, if any) and order that the costs so assessed or any part of them be paid to the successful party by any other party within a time specified in the order. (9) The District Court shall not order the payment of costs under subsection (8) by the applicant for a determination under this section unless satisfied that the application was frivolous or vexatious or was made fraudulently or without proper justification." The submission put to me on behalf of the plaintiff by Mr Hammond is that before an order for costs can be made under the Police Act there must be a substantive hearing of the case on its merits, and only after the Court has determined that substantive matter can the Court entertain an order for costs. 16In the course of argument I made an observation that, perhaps, subsections (8) and (9) are otiose in that it was not necessary for them to be enacted because the general power of this Court and its predecessors, the Compensation Court of New South Wales and the original Workers Compensation Commission of New South Wales, had a general power of ordering costs always subject to the limitation of not ordering costs against an unsuccessful "worker" unless it was satisfied that the application was frivolous or vexatious or was made fraudulently or without proper justification. 17However, there may be some merit in an argument that if an order is made under s 21(8) of the Police Act it would not be limited to the "Workers Compensation Scale" that is normally applied to proceedings in both a Special Statutory Compensation List and proceedings in the Coal Miners' Workers Compensation List. However, s 142K of the District Court Act may obviate such an argument. 18Essentially, the plaintiff says that by application of the normal principle of interpretation, generalia specialibus non derogant, the general provision concerning costs in the residual jurisdiction of the Court does not apply to the special provisions contained in s 21. 19To adopt such an argument would do no justice either to plaintiffs in this List or to the defendants in this List. Fortunately, many matters, whether the defendant be the Commissioner of Police or the SASTC, settle. Normally when cases settle the defendant agrees to pay the plaintiff's costs. If the only power to order costs is after a contested hearing on the merits, then there would be no power to order costs when a case settles. Plaintiffs might not settle unless the defendant agrees to pay the plaintiff's costs, but equally it would be open to a cunning defendant to submit to an appropriate order or award or to submit to the relief claimed and then pay no costs at all. In other words, the argument advanced by the plaintiff in this case, if correct, would have a grave disadvantage to many other plaintiffs in this List. 20Equally, it is hard to envisage how Parliament would create a scheme where, for example, a plaintiff wished to discontinue merely because the plaintiff did not wish to go through what can be the harrowing process of litigation. Equally, it is hard to see Parliament establishing a scheme where, when it was clear that the plaintiff's case might fail, the plaintiff could not discontinue proceedings. 21Again, where, for example, a claim was fraudulent, it would be hard to see how Parliament could set up a scheme which would enable the fraudster to withdraw his application at the last moment, that is, before the commencement of addresses or perhaps even before the commencement of judgment, and not pay the costs thrown away by bringing a patently fraudulent case. Therefore, I believe the better view is that although the provision regarding costs in s 21(8) of the Police Act might apply after the conclusion of a contested hearing, in other respects the power of the Court to grant costs is granted by s 142K. 22For example, in the Workers Compensation (Dust Diseases) Act 1942 there is no power to make any order for costs at all. However, I pointed out, despite a then comment from the editor of Mills' Workers Compensation Service New South Wales to the contrary, that there was power to order costs in favour of a successful applicant under that Act under the Compensation Court Act 1984: West v Workers Compensation (Dust Diseases) Board (1999) 18 NSWCCR 60. 23Accordingly, I am of the view that I have power to order costs against a party discontinuing proceedings but only if the party against whom the proceedings were brought can establish on the balance of probabilities that the claim as made initially in the statement of claim was frivolous or vexatious or brought without proper justification or fraudulent. 24Mr Hutchings accepted that there was nothing to suggest that the plaintiff's claim was fraudulent and nothing to suggest that the plaintiff's claim was vexatious. There is some case law on the meaning of a fraudulent claim and I need not refer to it in these circumstances. There is at least one case of which I know concerning a vexatious case. It is one which I determined some years ago in the Compensation Court but was never reported. In that case I pointed out that the principle behind vexatious litigation is summed-up in the maxim nemo debet bis vexari pro eadem causa: no-one ought be twice vexed for the same reason. In the case where I had reason to point that out the employer in question had been thrice vexed by a worker seeking the same relief in respect of the same injury. Costs were awarded against him. The idea of vexatious litigation, of course, is that it is repeated and over the same issue in substance, if not in form. 25The remaining areas upon which the defendant can rely are frivolity and without proper justification. The current matter could be hardly described as frivolous. The plaintiff served between 25 March 1988 and 3 November 1999 as a constable of police, either as a probationary constable, a constable or a senior constable. During her period of employment she made contributions to the Police Superannuation Fund. After nearly 12 years she resigned. Had she spent 20 years or more in the New South Wales Police, she would have been entitled on a medical discharge to a pension at the base rate of 48.5% of the salary of her office. If the plaintiff had been medically retired and the certified infirmity was determined either by the Commissioner of Police or the Court to be caused by the plaintiff's having been hurt on duty, the minimum pension under s 10(1A) of the Police Act would be 72.75% of the salary of her office. That may be increased pursuant to s 10(1A)(b) up to 85%, and if the plaintiff were totally disabled she would be entitled to a pension of 85% the salary of her office and be entitled to claim an additional amount pursuant to s 10(1A)(c) which could entitle her to a pension of up to 100% of the salary of her office. 26The plaintiff was born on 25 October 1967. She is currently 45 years of age. If she were successful in her current claim she would no doubt seek her pension be backdated, no doubt to when she voluntarily resigned on 27 November 1999, although it may well only be that she be allowed a pension back to the time that she made application for the pension to the SASTC, which eventually sent the plaintiff to have her medical discharge determined by the Police Superannuation Advisory Committee. In any event, the point I am making is this: the extent of the benefits available to hurt-on-duty former police officers under the Police Act is so great that pursuing such a claim could hardly be said to be frivolous. It might be otherwise, of course, if all that is sought is some gratuity equivalent to expenses under s 60 of the Workers Compensation Act 1987. 27Therefore, the defendant's real reliance is upon the argument that the plaintiff's claim was brought without proper justification. I had to cause to deal with that issue in Nikolov v Poulos Bros (Wholesale) Pty Ltd (2000) 19 NSWCCR 329. In that case I held at [14] that the claim made by the worker was res judicata arising from an earlier determination that I had made. At [15] I held that in those circumstances the claim was made without proper justification. I should point out that consistent with what I have said today it was probably also vexatious. Commencing at [16] I said this: "[16] In Bruce v Grocon Ltd [1995] NSWCC 10; (1995) 11 NSWCCR 247, I pointed out at 267, that where a claim could have been litigated in earlier proceedings but was not, there may be a costs penalty. This is such a claim. I also point out that the standard of proof in an application of this nature is the civil standard of proof as held by the Court of Appeal in Pascoe v Barrier Crash Repairs Pty Ltd [1978] 52 WCR (NSW) 156. [17] Mr Monaghan has submitted to me that the words 'without proper justification', ought to be interpreted as meaning 'without any possible justification'. I am unable to accede to that submission. That would be to interpret the words 'without proper justification' as meaning 'without any justification' or 'without justification'. [18] It appears to me that the word 'proper' when used in the expression 'without proper justification', modifies the strictness of the word 'justification' just as in the phrase 'reasonably necessary', the word 'reasonably' modifies whether something is necessary or not. Strictly something is necessary or it is not. To make something reasonably necessary modifies the strictness of the necessity. [19] It appears to me that the appropriate synonym for 'proper' in the phrase with which I am now dealing is 'genuine' or 'real' or 'appropriate', being the second and third major meanings of the word 'proper' as recited in the Shorter Oxford Dictionary. [20] There must be an appropriate justification. Here there is not any appropriate justification and indeed in the light of the facts recited in my earlier reasons for judgment, there would not appear to be any justification at all." 28Accordingly, I must turn to the question of whether the defendant has established on the civil standard of proof that the plaintiff's application was made "without proper justification". It is trite to say because it has been established for some considerable time that the relevant time to consider whether a claim was or was not made without proper justification was the time that the proceedings were actually commenced: Skene v Coles Supermarket Pty Ltd (2000) 21 NSWCCR 54. Authorities to the same effect go back many years before 2000. 29I shall determine the question on its merits tomorrow morning. 30Immediately prior to adjourning yesterday afternoon, I indicated that I was about to turn to the question of whether the defendant has established, on the balance of probabilities, that the plaintiff's case was brought without proper justification. However, I should revert back to one issue of a legal nature that I discussed yesterday, that is the interaction between the general costs making power and s 21(8) of the Police Act. When s 21(8) of the Police Act was first enacted, the power of the original Workers Compensation Commission was arguably limited to awarding costs only to claims under the Workers Compensation Act 1926, as s 38(4) of that Act was the source of the Commission's cost making power. Hence can be seen the need to enact s 21(8) of the Police Act. However, that provision became otiose when Compensation Court Act 1984 s 18 was enacted. Perhaps the Parliamentary draftsman was unaware of the redundancy and unwittingly preserved it. 31I turn then to the merits of the current application. The evidence before me is limited. It comprises a report of Dr Bruce Westmore bearing date 19 September 2011, following upon his examination of the plaintiff on 7 June 2011, a report of Dr Peter Anderson bearing date 30 November 2012, following upon his examination of the plaintiff on that day, the plaintiff's letter of resignation bearing date 3 November 1999 and a typewritten report by Mr JS Richardson, the Acting Local Area Commander at Eastwood, dated 3 November 1999 and a manuscript report endorsed thereon by Superintendent Williams, the Local Area Commander at Eastwood dated 10 November 1999. I apologise to Mr Richardson for not stating his rank but his rank is not known to me. It is clear that he must have been either an inspector, acting superintendent or superintendent. From that material, certain pertinent facts can be gleaned, as well as from the pleadings. 32The plaintiff was born on 25 October 1967. She is now 45 years old. She appears to have grown up in Goulburn. Her father himself was a member of the New South Wales Police Force. The plaintiff was attested as a probationary constable of police on 25 March 1988, less than a week prior to the closure of the Police Superannuation Fund. She appears to have been originally assigned to the Campsie Police Station. In 1989 she met her current husband and they commenced a relationship. The plaintiff's husband was at that time a member of the New South Wales Police Force. 33In May 1995, the plaintiff was transferred to Pennant Hills and remained stationed at Pennant Hills until she resigned from the Police Force. In the same year, she and her husband moved to live on the central coast. Whether that was before or after the plaintiff's transfer to Pennant Hills the evidence does not allow me to discern. According to the statement of claim, which was filed on 7 December 2010, the plaintiff was living at Tumbi Umbi. By the time she and her husband moved to the central coast, the plaintiff had two children, a daughter born on 20 August 1993 and a son born on 1 October 1994. 34In 1996, the plaintiff's husband was involved in an incident when an offender spat in his face and eyes. That offender was known to be HIV positive and to suffer from one of the hepatitis viruses. The plaintiff's husband believed that he may have contracted one of those illnesses. That greatly concerned him. According to a history given by the plaintiff to Dr Anderson, the plaintiff's husband was provided with no counselling and he did not talk to anybody about his anxieties, even to his own wife, the plaintiff. According to the plaintiff's history, her marriage deteriorated as a result of this event. According to the history obtained by Dr Westmore, the plaintiff's husband not only received no counselling, he did not receive any medical assistance from the Police Force. According to that history, the plaintiff's husband started to drink heavily and that was a material fact in the breakdown of her marriage. 35After this event concerning the plaintiff's husband, the plaintiff again fell pregnant and her husband was concerned that he may have passed on either HIV or hepatitis to his unborn child. That child, a boy, was born on 18 July 1997. Fortunately, the child was healthy. It appears that the plaintiff's husband was not infected by the event that occurred in 1996. Whenever she was pregnant, the plaintiff was placed on "light duties". After the birth of her third child, she took maternity leave and returned to work in January 1998. According to the history given by the plaintiff to Dr Anderson, she returned to general duties at Pennant Hills doing two 12-hour shifts a week. Those shifts were either from 8 am to 6 pm, or from 6 am to 6 am. Those shifts varied, although the plaintiff tried to get the same shifts each week. 36However, by May 1998 the relationship between the plaintiff and her husband was so badly affected that they separated. The plaintiff's husband returned to live with his family in Sydney. At that stage the plaintiff's children were aged four and a half years, three and a half years and eight months. According to the history given by the plaintiff to Dr Anderson, the marriage break-up was quite a bad one, in that her husband was unstable, drinking alcohol heavily and was irrational. 37The plaintiff had no family on the central coast or in Sydney. Her mother, father, brother and sister were still living in Goulburn. She had some local friends on the central coast but they themselves were busy looking after their own young children. She had longer standing friends, but they lived either in Sydney or Goulburn. Essentially, the plaintiff lacked any adequate familial support to help her care for her children after her husband left the family home in May 1998. Dr Anderson obtained this history of what happened after the separation of the plaintiff and her husband: "At the time of the marriage break-up, she wanted to continue work and in any event she had to do so financially. The solution for her to continue work was that her husband would travel from Sydney to her home on a Sunday afternoon and he would be there from that time for 48 hours so that she went to work Sunday night and Monday night, doing the 12-hour overnight shift. The husband minded the children overnight and took them to childcare on the Monday and the Tuesday. She would pick them up from childcare on the Tuesday. She found this arrangement hard because the communication between the parties was poor. The husband was angry and not stable. She had everything planned. Dinner was ready for the children for the Sunday night and they were packed for childcare for the Monday. She was concerned leaving her husband in charge of the children because of his state of mind and because she was two hours away. She was also anxious because she did not see them for a 48-hour period. These arrangements continued for a period of 14 months until it was just too stressful and too hard. In the meantime, she tried to get a transfer in her work to the central coast so that these arrangements could be improved and she not have to rely on her husband." 38In July 1999, at the end of that 14-month period, the plaintiff went on sick report or, as it is more commonly known in the work force, sick leave. The report of Dr Anderson refers to a report of the plaintiff's general practitioner, Dr Hyland, which is dated 18 August 2008. That report apparently gives dates of consultations by the plaintiff commencing in January 1998 until November 1999. According to Dr Anderson, six of those consultations were prior to July 1999 and seven were subsequent to July 1999. Dr Anderson goes on to record certain parts of Dr Hyland's report. A relevant section is this: "Lisa explained to me how she had had an extremely stressful time with her husband, ultimately leading to their separation in 1998. This had left her as a single parent. With no support from her workplace, she could not see any way that she could return to her work as a police officer. She presented to me for ongoing medical certificates. She was also prescribed a sedative for her insomnia on 2 August 1999. The symptoms described at the time would fit a diagnosis of mixed anxiety and depression. ... The medical certificates span from 2 August 1999 to 7 November 1999. It was clear at that time that she was not fit to return to work. As Lisa had run out of sick leave, she felt her only choice was to resign." 39On 3 November 1999 the plaintiff presented at 11 am to the Acting Local Area Commander at Eastwood, Mr Richardson. She presented him with a letter of resignation. The letter is in the form of a report. Under the heading "background", the plaintiff said this: "I am a Single Mother with three small children. For the past 18 months I have applied four times to be transferred to the central coast. Two times on compassionate grounds and two times with advertised positions. I have not been given a transfer, and after 18 months of struggling to keep going, I believe I am still no closer to getting a transfer closer to my home address. I have contacted the Police Welfare section and the Police Association, which have also been unable to help me. After much consideration I have decided that the welfare of my children, as well as my health is more important to me than putting all this under a huge amount of strain for an occupation that sadly does not consider the needs of an individual officer when they are doing it tough. I am convinced that I am just a number and no one really does care. It is hard to believe that a Service as large as the NSW Police Service, is so behind in there [sic] treatment of employees." The letter goes on to say that the plaintiff's resignation would take effect on 27 November 1999. 40In his report concerning the presentation of the plaintiff's letter of resignation, Mr Richardson said this: "I inquired of Senior Constable Wilson if I made some inquiries with a view to reviewing her situation, relating to transfer, whether she would consider withholding her resignation and she replied in the negative. She indicated to me that she had been under considerable stress, including the collapse of her marriage and I suggested to her that perhaps this decision is one that she might need to give more consideration. However, she was adamant that she wished to tender the resignation and I accepted same." It is clear from the next section of Mr Richardson's report that the plaintiff was completely resolved to pursue her resignation because she had brought with her all items of uniform and all her appointments. Mr Richardson's report was addressed to the Permanent Local Area Command, Superintendent Williams. On 3 November 1999 he was on annual leave. He returned to work on Monday 8 November 1999 and on 10 November endorsed the following comment on Mr Richardson's typewritten report: "During late September and early October 1999 I had a number of phone conversations with [Human Resources] managers at Endeavour and North [Metropolitan] Region and also Transfer services. I went to a great deal of trouble to successfully organise an agreed transfer for Senior Constable Wilson into a part-time position at Gosford. On three occasions I informed Senior Constable Wilson by phone that she was to see the HR manager at North Metro Region, complete her green forms and send them to me for processing. Senior Constable Wilson never availed herself of this opportunity finally stating in the [third] phone call that a transfer to Gosford wouldn't help because she still had to find day care for her children. She was informed that North Metro Region was prepared to negotiate on 12-hour shifts. The senior constable chose to resign instead." 41I must interpolate at this stage some of the forensic history of these proceedings. On 12 June 2012, I set the matter down for hearing on 19 November 2012 for three days. On 8 November 2012 the plaintiff filed a notice of motion. That notice of motion contained two substantive prayers. The first prayer was that the amended defence filed on 27 October 2011 be struck out and that the hearing commencing on 19 November 2012 be vacated. That notice of motion came before me on 12 November 2012. Mr Hammond of counsel appeared for the plaintiff and Ms McFee appeared for the defendant. The amended defence, inter alia, raised a defence under s 11A of the Workers Compensation Act 1987. The only particulars given in the pleading were, "The plaintiff's request for transfer from Pennant Hills Police Station to the Central Coast in 1998." Those particulars were, as far as I was concerned, inadequate. I made a formal order that the defendant supply further particulars of the s 11A defence by 4 pm on Monday 19 November 2012. However, I have a clear recollection of Ms McFee producing in Court and handing over to Mr Hammond the manuscript report of Mr Richardson of 3 November 1999 with the handwritten comments of Superintendent Williams endorsed thereon. That has become exhibit 1-1 on this application. It can be noted that that concerned arrangements made by Superintendent Williams to offer the plaintiff work at Gosford in late September and early October 1999 rather than the date in 1998 pleaded in the amended defence. 42On the notice of motion, the plaintiff relied on the affidavit of Ms Kim Smith sworn 8 November 2012, which was exhibit A-A on that application. Paragraph 12 of the affidavit recorded that as a result of counsel's advice the plaintiff had an appointment to see Dr Anderson on 30 November 2012, which clearly was after the listed date for hearing. I granted the plaintiff the adjournment which the plaintiff sought, and set the matter down for hearing for three days commencing yesterday and reserved the question of costs thrown away by the adjournment. Accordingly it can be seen that the plaintiff's lawyers were well aware of what evidence might be given by Superintendent Williams as at 12 November 2012. 43The statement of claim itself contains the following allegations: "7. From 1988 to October 2000 the plaintiff separated from her husband and moved to more affordable accommodation on the central coast with her young children. 8. The plaintiff was travelling up to 16 hours per day to and from work by public transport, working six 12-hour shifts and two night shifts a week. 9. On or around 1998 the plaintiff requested a transfer to the central coast for over 12 month [sic] but she was unsuccessful. Twice she applied for a transfer on compassionate grounds, and twice she applied for advertised positions but she was denied on all occasions. 10. On or around 1998, the plaintiff became depressed and overwhelmed trying to cope with working in Sydney and living on the central coast. She worked and travelled long hours which disrupted her sleeping pattern. 11. On or around July 1999, after over 12 months of failed attempts to transfer to the central coast, the plaintiff felt she could no longer cope. The plaintiff attended upon her general practitioner at the time Dr Hyland at Ourimbah. Dr Hyland put the plaintiff off work from July 1999 to November 1999. It was not accepted as hurt on duty. 12. Whilst off work from July 1999 to November 1999 the plaintiff received only one phone call from the police inquiring about her welfare. She felt isolated and undervalued. 13. The plaintiff's sick leave subsequently ran out in November 1999. 14. On 27 November 1999 the plaintiff resigned from the police force." It is clear from the pleading that the plaintiff's complaint was that she made at least four applications for transfer to the central coast which were met without any positive response; two of them were for advertised vacancies and two of them were applications on compassionate grounds. 44As to advertised positions, Dr Anderson obtained the following history: "I asked her more about possible transfers. She said positions were advertised when they became available. A lot of people wanted a position on the central coast because they lived in that area. First she applied on compassionate grounds and this was rejected. She was told she would have to apply for advertised positions. One came up and she applied for that but was not successful. A work colleague was successful ahead of her. She was upset that she was not successful. The successful colleague had two children but was happily married, had family support and her husband worked on the central coast. She had less experience and qualifications. This occurred in July or August 1998. By October/November 1998, she was "upset" and she said she knew it would be some time before another position came up." Dr Anderson has only a history of one application for an advertised position. The complaint made by the plaintiff suggests that she was overlooked for a job for which she was better qualified and had more experience than the successful applicant. However, police officers at that time had a right to appeal to Government and Related Employees Appeals Tribunal about being passed over for an appointment for which they were better qualified than the successful applicant. If the allegations made by the plaintiff were correct, she could have appealed to GREAT. However, there is no suggestion that she did so. 45The history given by the plaintiff appears to indicate that the applications for compassionate transfer were made in 1998. However, it is clear from what is reported by Superintendent Williams that he made arrangements for a transfer to Gosford in late September or early October 1999. There is clearly a factual conflict between what the plaintiff says and what Superintendent Williams says. Neither Superintendent Williams nor the plaintiff was required for cross-examination on the document prepared by each of those persons. The medical reports which I mentioned earlier were tendered by the defendant and the history obtained contained in such reports is some evidence of the facts of that history. 46The resolution of a factual conflict is usually best ascertained through cross-examination. The closest thing to cross-examination is the questioning of the plaintiff by Dr Anderson at his examination on 30 November 2012, clearly after what is now exhibit 1-1 was drawn to the plaintiff's lawyers' attention. The relevant section of Dr Anderson's report is this: "At this stage I asked her about the Commander's letter dated 3 November 2009. I had not myself read the letter at this stage but I had my attention drawn to it by counsel [Mr Hammond] who spoke to me prior to interview. I read the letter subsequent to interview. I understood that the letter was relied upon in the amended defence and asked her what she knew about it. She said she had been trying for 18 months to get transfer, compassionate or otherwise and she had not received any help. There was no promise or indication that a transfer was close. She went in to resign on 3 November and the Commander was absent and a stand-in was in his place and the view expressed by the stand-in was that she ought to be able to get help in having a transfer. She said the conversation went roughly like this. Commander says, 'Why can't you get a transfer?'; she answers, 'You tell me', he says, 'We will organise a transfer', and she said, 'I need it now'. She believes there was some protection of the backside therein and she says she had been off sick for four months at that stage and no one had done anything helpful in that time. I asked her about the police response to her being off work sick for those four months. She said the Commander telephoned her on one or two occasions and a couple of workmates had checked in on her at home. There was no attempt to counsel her or work anything out. I asked her what she remembered about the Commander's telephone calls, she said she remembered one. It was about 6 pm, she was vacuuming, one of the children answered the phone, i.e. a child under the age of five. She does not recall the conversation. She says the Commander knew her situation and on her compassionate transfer application, had said that her situation was legitimate. Her impression was that he backed her and the failure to transfer may have been beyond him." 47I return to the pleadings. Contrary to what is said in paragraph 7 of the statement of claim, the plaintiff and her husband had been living on the central coast since 1995. The plaintiff may have relocated to more affordable accommodation on the central coast, but she was on the central coast since 1995. Paragraph 8 of the statement of claim is somewhat misleading. The plaintiff was travelling two hours to work and two hours from work, together with a 12-hour shift, which made a total of 16 hours. The history as recorded by the medical practitioners indicates that the plaintiff took public transport to and from work and because that was cheaper than driving a motorcar. As I understand it, police officers travelling in uniform are permitted free transport on the New South Wales railways as their presence in uniform is a deterrent to misbehaviour on trains. Travelling two hours to work and two hours home from work is not particularly unusual. There are people who work in the central business district of Sydney who travel regularly from the central coast, the Blue Mountains and the Illawarra. Indeed sometimes it takes me two hours to get to work and sometimes two hours to get home, even though the distance between this courthouse and my home is but 30 kilometres. 48Paragraph 12 of the statement of claim is incorrect as the plaintiff admitted to Dr Anderson that she had received one or two telephone calls from her Commander and a couple of her workmates had checked in to see her at her home. It is also clear from exhibit A-A, the plaintiff's letter of resignation, that she herself had been in contact with the Police Welfare Branch and also her trade union, the Police Association. I have little doubt the plaintiff resigned when her sick leave ran out. The real question of course is whether work was offered to her as stated by Superintendent Williams. The last section of Dr Anderson's history which I have recorded clearly indicates that the plaintiff knew that the superintendent knew her situation, knew of her request for a compassionate transfer and had told her that he viewed her position as being "legitimate". Nevertheless she says that there was a failure of the transfer to occur when, according to Superintendent Williams, all that she needed to do was complete the paperwork and have it processed. However, that may well be at the heel of the hunt, so to speak. The plaintiff went off work in July 1999. Superintendent Williams' efforts were in late September and early October 1999 and the plaintiff resigned on 3 November 1999. 49The real mischief arose when the plaintiff's husband left the family home in May 1998. There is no evidence before me of what may have happened as far as compassionate transfer is concerned between May 1998 and late September 1999, a substantial period of time. If a compassionate transfer had been arranged during that period the plaintiff may never have gone off on sick report at all and stayed in the police force. In other words, I can see a valid argument that the efforts of Superintendent Williams came too late. 50Another nice question arises concerning the interpretation of s 11A of the Workers Compensation Act 1987. Subsection (1) contains the following matter: "No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by a reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers." Only an employer can transfer an employee, only an employer can likewise demote or promote an employee, only an employer can carry out a performance appraisal, only an employer can discipline an employee, only an employer can retrench or dismiss a worker and only an employer can provide employment benefits. The question which arises is whether, in the present circumstances, where the request for transfer is made by the employee, s 11A is applicable. As currently advised, I believe that the answer to that question is yes. An employee can request a transfer. An employee can request a promotion. An employee can request the provision of benefits to him or her and sometimes an employee can request retrenchment, especially if there is a large retirement package or retrenchment package available to him or to her. 51The other question that arises is whether inaction can fall within the concept of "reasonable action" that might be taken by the employer. 52Factually, I can still see that there might be a valid argument in favour of the plaintiff's case. In those circumstances I am not persuaded on the balance of probabilities that the plaintiff's case was brought without proper justification. 53I must also bear in mind the medical opinions. Essentially three are given in two medical reports before me. In Dr Westmore's report, he sums up an opinion of a psychiatrist, Dr Kaplan, in this fashion: "The psychiatrist, Dr Kaplan, [on] 21 April 2010, offers the view that Ms Wilson suffered a major depressive disorder and that the cause of the depression, 'arises from the stress when her husband was injured, then his condition after he left work, drinking heavily and becoming abusive. In addition the third pregnancy at a critical time worsened her mood and she had Post Natal Depression'. He said she suffered an untreated major depressive disorder at the time she resigned from her appointment in November 1999 and that her condition arose in a secondary way to her husband's psychiatric problems." I hazard the observation from the diagnosis made by Dr Kaplan, and the date of his report, that Dr Kaplan was qualified by the SASTC to provide medical advice to the Police Superannuation Advisory Committee. Dr Anderson likewise makes it clear that Dr Kaplan did not accept that what is currently relied upon by the plaintiff was a causative factor in the aetiology of her major depressive disorder. 54Dr Westmore himself expressed the view that causation of the plaintiff's major depressive disorder was multifactorial. However, he did not agree that there had been a distinct diagnosis of postnatal depression, in which opinion he is supported by Dr Anderson. However, Dr Westmore agreed that the plaintiff's husband's psychiatric problems were a significant factor in the onset of her depression. On that issue, Dr Westmore went on to say this: "The critical issue from Ms Wilson's perspective in relation to eventual departure from the police service was her failure or inability to be transferred from Sydney to the central coast where she lived. She reported that there were periods of days when she was not able to see her children, she suffered symptoms of anxiety that if the children were injured or something else happened to them while she was in Sydney, she would not be able to reach her children because of the distance she was away from them. I would accept that the stress of travel and the anxieties with the distance she was from her children while at work was a contributing factor to the aggravation of her depressive disorder on which the balance of probability commenced in response to her husband's difficulties and the subsequent relationship problems between her and her husband. I would accept that employment that as a New South Wales police officer, specifically her failure to gain a transfer from Sydney to the central coast, did play a role in the aggravation of her depressive illness. That difficulty was not "the injury which wholly or predominantly" caused her depression which is likely to have been the result of stress in relation to her husband and then the breakdown of her marriage." I merely point out that the requirement of "a substantial contributing factor" is a substantial contributing factor to the aggravation of the underlying disease and not a substantial contributing factor to a disease not caused by work. 55In essence, the opinion of Dr Anderson is the same. Dr Anderson accepted that it is common ground that the plaintiff was already depressed when her husband left the home in May 1998. He also accepted, and it is common ground, that the marital difficulty and her husband's work-caused problems were relevant factors in contributing to the plaintiff's depression. He went on to say this: "I think the aggravation was caused by a failure to transfer her. I think it is reasonable to say the aggravation caused the plaintiff to become incapacitated for police work. That aggravation had not ceased by the time she resigned." Of course, the time of the resignation is the operative time at which I would need to consider, if the matter proceeded to hearing, whether the aggravation of the certified infirmity was caused by the plaintiff's having been hurt on duty. In other words, there is medical support for the case that the plaintiff could have presented if she decided to pursue her claim. 56For the sake of completeness, I would just add a little good news. In October 2000 the plaintiff and her husband reunited, and they remain happily married. Her husband has been medically discharged from the New South Wales Police and, as I understand it, is in receipt of a hurt on duty pension. The plaintiff worked for about four years for two days per week doing school canteen work and for the last seven or eight years has done administrative duties. She is now clearly in the workforce earning an income, and her children are all now fit and healthy. Her eldest child works as a nanny in Sydney. Her 18-year-old son completed the HSC in November 2012 and her nine year old son is clearly still at school. 57As I indicated earlier when considering the facts, and now having considered the medical evidence, I am not persuaded on the balance of probabilities that the plaintiff's case was brought without proper justification. In those circumstances, the defendant's application for costs is refused. ********** 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: 20 September 2013