Hahn v Commissioner of Police [2014] NSWIRComm 13

Industrial Relations Commission New South Wales Medium Neutral Citation: Hahn v Commissioner of Police [2014] NSWIRComm 13 Hearing dates: 13 February 2014, 24 March 2014 Decision date: 10 April 2014 Jurisdiction: Industrial Court of NSW Before: Boland AJ Decision: At this stage of the proceedings I do not propose to make orders granting Metlife's applications, nor do I propose to dismiss them. I will allow the parties an opportunity to consider my reasons in this judgment and to decide what course they wish to take henceforth. If the applicants wish to pursue their applications, or amended applications, seeking declaratory orders I will deal with them on the basis of my reasoning in this judgment including my understanding of the Court's powers under s 154 as I have outlined them subject, of course, to any further jurisdictional objections. All four matters constituting these proceedings are listed for directions at 9.30am on Monday 5 May 2014. Costs are reserved. Catchwords: DECLARATORY RELIEF - Application by four former police officers for declarations regarding entitlement to a lump sum benefit under the Crown Employees (Police Officers Death and Disability) Award 2005 ("the Award") by virtue of them suffering total and permanent disablement (or "TPD") as defined under the Award and by virtue of each being a member of an insurance scheme established pursuant to the Award known as the First State Super Scheme ("the Scheme") - Relief opposed by second respondent - JURISDICTION - Whether there was an accrued right to claim entitlement to lump sum benefits in circumstances where Award providing for benefit had been rescinded - Whether s 146D of the Industrial Relations Act 1996 precluded the Industrial Court from making orders in relation to benefits payable for TPD - Whether declarations sought related to an industrial matter - Held no accrued right exists under the rescinded Award to pursue claims for benefits in relation to an on duty injury that was said to have resulted in a police officer suffering total and permanent disablement, such officer having been medically discharged prior to 9 December 2011 being the rescission date of the Award - Further held that the Court's power to make declaratory orders is unfettered by s 146D of the IR Act - Further held that if the applicants are able to establish, even in the absence of an award provision, that there is a matter, which may be an industrial matter, in relation to which the Commission or the Court has jurisdiction, the Court may make binding declarations of right - Parties directed to consider their position in light of reasons for decision - Costs reserved Legislation Cited: Industrial Arbitration Act 1940 Industrial Relations Act 1996 Police Act 1990 Police Amendment (Death and Disability) Act 2011 Police Regulation 2008 Cases Cited: Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 Ambulance Service of NSW v Health Services Union East [2014] NSWIRComm 4 Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 139 ALR 663 Crewdson v Department of Community Services and anor (No. 2) [2002] NSWIRComm 121 Crown Employees (Police Officers - 2009) Award (No 4) [2013] NSWIRComm 43 Crown Employees Wages Staff (Rates of Pay) Award 2011 & Ors [2013] NSWIRComm 53 Crown Employees Wages Staff (Rates of Pay) Award 2011 & Ors (No 3) [2013] NSWIRComm 109 Crown in Right of the State of New South Wales (Director-General, NSW Department of Health) in respect of Sydney West Area Health Service v New South Wales Nurses' Association at [2011] NSWIRComm 111; (2011) 209 IR 49 Crown In Right of the State of NSW v Maund/Maund v FSS Trustee Corporation [2013] NSWSC 183 Edwards v Santos Ltd [2011] HCA 8; 242 CLR 421 Fisher v Hebburn [1960] HCA 80; (1960) 105 CLR 188 Ford v SAS Trustee Corporation [2000] NSWIRComm 92; (2000) 98 IR 444 Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 Oil Basins Limited v The Commonwealth of Australia and Others [1993] HCA 60; (1993) 178 CLR 643 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Department of Education and Communities [2013] NSWIRComm 32 Public Service Board (NSW) v The Public Service Association (NSW) (1986) 14 IR 445 Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 Speirs v Industrial Relations Commission of New South Wales & Anor [2011] NSWCA 206; (2011) 210 IR 337 Stevens v The Railway Commissioners for New South Wales (1930) 31 SR (NSW) 138 Tempo Services Ltd v Strezouski [2005] NSWIRComm 329; (2005) 146 IR 411 Texts Cited: Declaratory Orders, P W Young QC (2nd ed, Butterworths, 1984) Category: Interlocutory applications Parties: Charles Jifkins (Applicant) in IRC 407 of 2013 David Wild (Applicant) in IRC 602 of 2013 Adam James Hahn (Applicant) in IRC 675 of 2013 David Dee (Applicant) IRC 682 of 2013 Commissioner of Police (First Respondent in all matters) Metlife Insurance Limited (Second Respondent in all matters) First State Super Trustee Corporation (Third Respondent in all matters) Representation: R A Cavanagh of Senior Counsel with T Edwards of counsel (Applicant/Respondent on the Motions) E Holmes of counsel (First Respondent/Respondent on the Motions M Lee of Senior Counsel with J Duncan of counsel (Second Respondent/Applicant on the Motions) V Heath of counsel (Third Respondent/Respondent on the Motions) Harris Wheelers Lawyers (Applicants) Henry Davis York Lawyers (First Respondent) Turks Legal (Second Respondent) Mills Oakley Lawyers (Third Respondent) File Number(s): IRC Matter Nos 407 of 2013, 602 of 2013, 675 of 2013 and 682 of 2013