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an accrued right to claim entitlement to lump sum benefits in circumstances where Award providing for benefit had been rescinded - Whether s 146D of the Industrial Relations Act 1996 precluded the Industrial Court from making orders in relation to benefits payable for TPD - Whether declarations sought related to an industrial matter - Held no accrued right exists under the rescinded Award to pursue claims for benefits in relation to an on duty injury that was said to have resulted in a police officer suffering total and permanent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 JudgmenT Nature of the proceedings 1Adam Hahn, David Wild, David Dee and Charles Jifkins, are all former New South Wales police officers. Each of them was medically discharged from the NSW Police Force on varying dates prior to 9 December 2011 as a consequence of an on duty injury or injuries. Each of them claim they are entitled 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"). Each of them has sought declaratory relief and consequential orders pursuant to s 154 of the Industrial Relations Act 1996 ("IR Act") aimed at securing the benefit each of them claim. A copy of the declaratory orders sought by each of the applicants is set out in Annexure A to this judgment. Annexure A constitutes part of this judgment. 2The applications seeking declaratory relief name three respondents: New South Wales Police Force (which does not appear to be a juristic entity and should properly be the Commissioner of Police, he being the employer under s 85 of the Police Act 1990 for the purposes of any proceedings relating to non-executive officers held before a competent tribunal having jurisdiction to deal with industrial matters); Metlife Insurance Limited ("Metlife" or "second respondent"); and FSS Trustee Corporation ("FTC" or "third respondent"). 3The first respondent, the Commissioner of Police, is the former employer of the applicants. Pursuant to cl 10.1 of the Award, NSW Police Force established the Scheme with the third respondent as trustee of the Scheme to pay the lump sum benefits prescribed by cll 7 and 8 of the Award. In about July 2005, under an insurance contract, the second respondent issued to the third respondent a policy of insurance to cover the liability of the third respondent under the Scheme. The policy was called the "Blue Ribbon Group Life Policy". 4Metlife is resisting any involvement of the Industrial Court in determining whether the applicants have a claim to any lump sum benefits on three bases: (i) the right under the Award to such benefits had been extinguished ("No Relevant Award Rights Contention"); (ii) the Court has been expressly deprived of jurisdiction to make the declarations sought ("Jurisdiction of Commission Contention"); and (iii) that even if there was an extant right under the Award to the lump sum benefits, the declarations sought did not relate to an industrial matter. Accordingly, it was submitted no jurisdiction existed under s 154 of the IR Act to make the declarations ("Industrial Matter Contention"). 5Metlife filed notices of motion in the Dee, Hahn and Wild proceedings, seeking to have the applicants' applications dismissed insofar as they sought relief against the second respondent. Metlife has filed no motion in the Jifkins' proceedings. It is clear, however, that the second respondent is seeking to have the Jifkins' application for declaratory relief dismissed essentially on the same bases it relies upon in the Dee, Hahn and Wild proceedings. Whatever the outcome in the Dee, Hahn and Wild proceedings will determine the outcome in relation to Jifkins. 6There are difficulties with the filed notices of motion, as the first and third respondents pointed out. Metlife's notices of motion challenging jurisdiction did raise the Industrial Matter Contention, but did not refer to the other two Contentions. Senior counsel for the second respondent first raised these on the day of the hearing of Metlife's motions. Counsel for the other parties addressed all three Contentions orally, but the Court allowed further written submissions to be filed and served given the short notice the other parties had of the new Contentions. 7The other difficulty is that Metlife challenged the Court's jurisdiction to make declaratory orders under s 154 of the IR Act only in general terms and on the basis as summarised in the submissions filed on behalf of the applicants, namely, that each of the applicants "seeks declarations from this Court as to his entitlement to the TPD benefit as contemplated by clause 10 of the Award., (sic) and as insured by Metlife." The second respondent did not address in any specific way the actual orders sought by each of the applicants as to whether the orders constituted matters in respect of which the Court possessed jurisdiction under s 154 of the IR Act. 8The further difficulty was that the grounds on which Metlife sought the orders differed between the three Notices of Motion. In the Dee and Wild proceedings, MetLife claimed that: 1. The Industrial Court is not seized of jurisdiction to hear and determine the application. 2. In the alternative, the Police Blue Ribbon Policy under which the applicant's claim lies does not invoke the jurisdiction of the Industrial Court. 3. In the alternative, no dispute has arisen under clause 10.8 of the Crown Employees (Police Officers Death and Disability) Award 2005 (the Award) so as to invoke the jurisdiction of the Industrial Relations Commission of New South Wales for determination. 4. In the alternative, any dispute as to the entitlement to receive a lump sum payment from the First State Super Insurance scheme has not been assessed in accordance with the First State Super Disputes and Complaints procedure and consequentially, the jurisdiction of the Industrial Relations Commission of New South Wales is not invoked. 5. In the alternative, the fact that the applicant made claim for, and has received, the partial and permanent disability benefit under the Award gives the provisions of clause 10.6 of the Award militates against the making of the declarations sought in respect of the second defendant. 9In the Hahn proceedings, MetLife asserted: 1. Insofar as the Application for Declaration Pursuant to section 154 of the Industrial Relations Act 1996 seeks relief against the second respondent, the application is not in respect of an "industrial matter". Accordingly, the Industrial Court is not seized of jurisdiction to hear and determine the application. 2. The Industrial Court is not otherwise seized of jurisdiction to hear and determine the application insofar as it seeks relief against the second respondent. 10Despite these difficulties I have sought to address the submissions that have been put regarding Metlife's notices of motion. However, as I explain later in this judgment, the absence of any focus on the actual orders sought by the applicants and whether they attract the Court's jurisdiction under s 154, means that I am not in a position, at this stage of the proceedings, to either grant the orders sought in the notices of motion or to dismiss the motions. 11Before leaving this issue of the nature of the proceedings I should state the position of the other parties regarding Metlife's jurisdictional contentions. In summary, the applicants disputed entirely the submissions of the second respondent. The first respondent provided helpful submissions on a number of jurisdictional issues. However, its ultimate position was that it neither consented to nor opposed the substantive orders sought by Metlife in the notices of motion insofar as they pertained to jurisdiction. In relation to the No Relevant Award Rights Contention and the Jurisdiction of Commission Contention, the first respondent submitted the submissions of Metlife in those respects should be dismissed. The third respondent's position, aside from helpful submissions regarding various aspects of the Court's jurisdiction, was that the proceedings ought not be dismissed on Metlife's application, as presently argued, because it could not be said to be clear that none of the declarations sought were within power. Relevant legislation and Award provision 12Before addressing Metlife's three Contentions it is necessary to identify the relevant legislative and Award provisions. First, the Award: cl 2 provided: 2 The intentions and commitments of this Award are to: 1.2.1 Provide benefits on medical discharge in the event that an on duty or off duty injury results in the death or total and permanent disablement or partial and permanent disability of a police officer. 1.2.2 Provide rehabilitation and retraining in the event that an on duty or off duty injury, results in a police officer suffering partial and permanent disability. 13Clause 4.1 of the Award provided: 4.1 This Award applies to all police officers with the following exceptions: 4.1.1 members of the Police Superannuation Scheme; and 4.1.2 members of the State Superannuation Scheme; and 4.1.3 to the extent identified in Clause 4.2 members of the State Authorities Superannuation Scheme who have additional benefit cover and who do not elect to be covered for the Death and Total and Permanent Incapacity benefits under this Award. 14Clause 7 provided for lump sum payments for "On Duty" death and total and permanent disablement and was in the following terms: 7. Police Officers - Lump Sum Payments for "on Duty" Death and Total and Permanent Disablement 7.1 Police officers who contribute under clause 5 shall be entitled to a lump sum payment in accordance with Schedule A to this Award in the event that an on duty injury results in a police officer's death or a police officer suffering total and permanent disablement. 7.2 Entitlements under Clause 7.1 in the event of a police officer's death will be paid to the deceased's estate. 15Clause 8 provided for lump sum payments for "Off Duty" death and total and permanent disablement. Clause 9 provided for rehabilitation, retraining and lump sum payments for police officers that suffer partial and permanent disability. Clause 9 has some relevance and was in the following terms: 9. Rehabilitation, Retraining and Lump Sum Payments for Police Officers Who Suffer Partial and Permanent Disability 9.1 The lump sum payments prescribed by this clause are payable by NSW Police. In order to be entitled to a benefit pursuant to this Clause, a police officer must satisfy the obligations outlined within this Clause. 9.2 There is a mutual obligation on both the employer and injured officer to identify suitable police positions for redeployment. However, it is the injured officer's responsibility to accept a reasonable offer of a suitable police position made by the employer, which may include transfer to another location. A failure to accept one of three (3) reasonable offers as per the Permanent Restricted Duties Policy of a suitable police position will jeopardize any benefits or entitlements payable under this Award and may result in medical discharge. 9.3 A police officer who suffers an on duty injury shall receive rehabilitation/retraining consistent with agreed policies leading to a return to pre-injury employment wherever possible. 9.3.1 Where a return to pre-injury employment is not possible, as determined by HealthQuest, or other medical assessor agreed by the parties, the officer will be considered to be suffering a partial and permanent disability and opportunities for placement in a suitable police position or as a permanent restricted duties police officer will be sought. At the same time, the police officer, with their consent, will be considered for redeployment to an administrative officer position. 9.3.2 If placement in a police position within the NSW Police is not possible and redeployment to an administrative officer position is not agreed to by the officer, the employment of the police officer may be terminated. In such circumstances the police officer, provided they have satisfied their mutual obligations, shall be paid a lump sum payment in accordance with Annexure B to this Award. 9.4 A police officer who suffers an off duty injury shall receive rehabilitation/retraining consistent with agreed policies, leading to a return to pre-injury employment wherever possible. No direct medical or rehabilitation costs will be met by NSW Police for off duty injuries 9.4.1 Where a return to pre-injury employment is not possible as determined by HealthQuest, or other medical assessor agreed by the parties, the officer will be considered to be suffering a partial and permanent disability and opportunities for placement in a suitable police position or as a permanent restricted duties police officer will be sought. At the same time, the police officer, with their consent, will be considered for redeployment to an administrative officer position. 9.4.2 If placement in a police position is not possible and redeployment to an administrative officer position within the NSW Police is not agreed to by the officer, the employment of the police officer may be terminated and, in such circumstances, the police officer shall be paid a lump sum payment equivalent to the unexpired portion of the two years full salary or full salary to age 60 (whichever is the lesser). The two year period commences when medical evidence indicates that an officer is not able to return to their pre-injury employment. 9.5 The objective of the rehabilitation/retraining program creates mutual obligations, which is for every police officer who suffers partial and permanent disability to be placed in a suitable police position within NSW Police, wherever reasonably practical. 9.6 An adequate opportunity will be given to the police officer concerned and the Association (unless the police officer expressly declines to agree to the Association being informed) to consider the NSW Police opinion that no suitable position is available and to put that opinion into dispute in accordance with the dispute resolution clause of this Award prior to medical discharge. 16Clause 10 is critical. It provided for an insurance scheme to be established to pay lump sum benefits to police officers and the assessment of entitlement to those benefits. Clause 10 provided as follows: 10. Insurance and Assessment of Entitlement to Benefits 10.1 The Association acknowledges that NSW Police will establish, with First State Super, an insurance scheme to pay the lump sum benefits prescribed by clauses 7 and 8 of this Award (the First State Super insurance scheme). 10.2 NSW Police shall deduct the contributions that police officers are required or elect to make pursuant to this clause from their salaries. 10.3 NSW Police shall contribute to First State Super such sum as required to meet the cost of the insurance premiums to fund the First State Super insurance scheme. 10.4 NSW Police shall meet the cost of benefits payable under this Award for Partial and Permanent Disability. 10.5 NSW Police will also meet the entitlement pursuant to Clause 7 and Clause 8 for death and total and permanent disablement benefits in the following circumstances: 10.5.1 Injuries or death in the period 23 June 2005 to 1 July 2005; 10.5.2 Members covered by the Transitional Arrangements in Clause 4; 10.5.3 Where a police officer suffers an on-duty injury which is recognized for the purposes of workers compensation law and where such injury is later aggravated or exacerbated off-duty and such injury is not covered by the insurer as being an on-duty injury; and 10.5.4 On duty overseas deployments to countries not covered by the insurer, pursuant to Clause 7 only. 10.6 Members are only entitled to receive one benefit under the Award. Receiving a "total and permanent disablement benefit" under the insurance arrangement contemplated by clause 10.1 of the Award discharges the NSW Police Force from liability to pay other benefits under the Award. If a police officer receives a "partial and permanent disablement benefit" and subsequently receives a "total and permanent disablement benefit", the officer must repay the "partial and permanent disablement benefit" to NSW Police Force within 14 days of receipt of the "total and permanent disablement benefit", unless the "partial and permanent disablement benefit" has already been deducted from the "total and permanent disablement benefit" and remitted to NSW Police Force by the insurer. The insurer is authorised to deduct from any "total and permanent disablement benefit" payable to a police officer the amount of any prior "partial and permanent disablement benefit" that has been paid to the police officer, and remit this amount to the NSW Police Force. Police officers will be required, prior to receipt of a benefit from the NSW Police Force, to enter into a Deed of Repayment that is in terms agreed between the parties. If a Special Risk Benefit under s 216 of the Police Act 1990 is payable to a police officer that officer is not entitled to a benefit under this award. 10.7 Entitlement to the benefits to be provided by NSW Police pursuant to this Award shall be assessed by NSW Police. Any dispute as to the entitlement of a police officer to receive a benefit under the terms of this award (whether lump sum entitlement or otherwise) may be referred to the Industrial Relations Commission of New South Wales for determination. 10.8 Entitlement to receive a lump sum benefit from the First State Super insurance scheme shall be assessed in accordance with the terms of the First State Super Trust Deed and Policy Document. Any dispute will be assessed in accordance with the First State Super Disputes and Complaints procedure. This includes if unresolved by internal processes, any dispute as to entitlement to receive a lump sum payment from the First State Super insurance scheme the matter may be referred to the Industrial Relations Commission of NSW for final determination. 10.9 Lump sum benefits payable under this Award shall be calculated utilising the salary as defined in this Award as at the date of disablement for a total and permanent disablement benefit or the police officer's last day of service for a partial and permanent disability benefit. In the case of police officers who have worked a period of their service on a part time basis, the benefits will be calculated by multiplying their full time equivalent salary by a part time ratio. This ratio shall be calculated by dividing the full time equivalent service by the officer's actual service since 23 June 2005. 10.10 A police officer otherwise entitled to benefits provided by this Award shall not be entitled to such benefits in relation to an injury (or consequent disability) directly caused by the taking of disciplinary action pursuant to section 181D or section 80 of the Police Act 1990, as amended, that may lead to removal from NSW Police. However, if: 10.10.1 the initiation of or conduct of such disciplinary action by NSW Police was not reasonable; or 10.10.2 the police officer is not ultimately removed from NSW Police as a consequence of the disciplinary action, then the police officer shall continue to be eligible to claim benefits for such injury. 17Clause 16.2 provided that the Award is binding upon the Police Association, a registered organisation of employees under the IR Act, and "NSW Police", which is defined as "NSW Police Force established by the Police Act 1990" ("The Police Act"). 18Sections 153 and 154 of the IR Act are central to the proceedings, referring as they do to the Court's power to order declaratory relief: 153 Jurisdiction of Commission in Court Session (1) The following functions of the Commission are to be exercised only by the Commission in Court Session: ... (b) proceedings for declarations of right under section 154, ... 154 Declaratory jurisdiction (1) The Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission (however constituted) has jurisdiction. The Commission in Court Session may do so, whether or not any consequential relief is or could be claimed. (2) Proceedings before the Commission in Court Session are not open to objection on the ground that a declaration of right only is sought. 19Section 146D of the IR Act was inserted by the Police Amendment (Death and Disability) Act 2011 and commenced operation on 9 December 2011. It is relevant to whether the Court has jurisdiction to make declaratory orders regarding police officers' entitlements to death and disability payments: 146D Commission has no jurisdiction in respect of death and disability payments for police officers (1) The Commission does not have jurisdiction or power to make or vary any award or order that provides for death and disability payments to or in respect of police officers. (2) The Commission cannot, in any proceedings relating to the remuneration or other conditions of employment of police officers, treat any savings attributable to the operation of the Police Amendment (Death and Disability) Act 2011 as employee-related cost savings that may offset increased employee-related costs arising from any award or order in those proceedings. (3) This section does not apply to awards or orders: (a) with respect to payments for accrued annual, extended or other leave on the death or termination of employment of police officers, or (b) in proceedings to enforce accrued entitlements (including under an award, or provision of an award, rescinded by the Police Amendment (Death and Disability) Act 2011), or (c) in proceedings by an incapacitated police officer for the enforcement of obligations of the NSW Police Force under applicable employment policies and practices to provide restricted or other duties to the incapacitated officer, or (d) in proceedings on an appeal under section 186 of the Police Act 1990. (4) An award or order of the Commission does not have effect to the extent that it is inconsistent with this section. (5) This section extends to appeals or references to the Full Bench of the Commission. (6) This section does not apply to the Commission in Court Session. (7) This section extends to proceedings that are pending in the Commission on the commencement of this section, and to awards or orders made or varied by the Commission after the date on which the Bill for the Police Amendment (Death and Disability) Act 2011 was introduced into Parliament. (8) This section has effect despite section 10 or 146 or any other provision of this or any other Act. (9) In this section: award or order includes: (a) an award (as defined in the Dictionary) or an exemption from an award, and (b) a decision to approve an enterprise agreement under Part 2 of Chapter 2, and (c) the adoption under section 50 of the principles or provisions of a National decision or the making of a State decision under section 51, and (d) anything done in arbitration proceedings or proceedings for a dispute order under Chapter 3. death and disability payments has the meaning it has in Part 9B of the Police Act 1990. 20Part 9B of the Police Act is relevant to the question of whether the Award had been rescinded by legislation and has no further legal effect. Part 9B was inserted by the Police Amendment (Death and Disability) Act. Schedule 1 of that Act, which incorporated Pt 9B, commenced on 9 December 2011 "as part of a suite of significant changes to the death and disability benefits for police officers": see Crown Employees (Police Officers - 2009) Award (No 4) [2013] NSWIRComm 43 at [14]. It is to be noted that each of the applicants was medically discharged prior to the commencement of Pt 9B. 21Relevant provisions of Pt 9B are ss 199l and 199K: 199I Rescission of Crown Employees (Police Officers Death and Disability) Award 2005 The Crown Employees (Police Officers Death and Disability) Award 2005 of the Industrial Relations Commission of New South Wales is rescinded. 199K Savings and transitional arrangements ... (3) If: (a) immediately before the Bill for the Police Amendment (Death and Disability) Act 2011 was agreed to by both Houses of Parliament, a police officer had been unfit for duty because of a disability for a total period of at least 4 months during the previous 8 months and the NSW Police Force had received a report or certificate from the police officer's nominated treating medical practitioner indicating that: (i) the police officer had reached maximum medical improvement, and (ii) the police officer should be discharged from the NSW Police Force, and (b) the police officer had not been discharged from the NSW Police Force before the commencement of this Part because of that disability, the provisions of the former death and disability award relating to payments for temporary or partial incapacity continue to apply in respect of that disability of that police officer despite the rescission of the award. Note. See subsection (8) for preservation of entitlements relating to death or permanent and total incapacity under insurance policies taken out pursuant to the award. ... (8) This section does not affect any entitlements under an insurance policy that has been taken out on behalf of police officers before the commencement of this Part. Note. Existing insurance policies taken out with First State Super cover police officers for death and for total and permanent incapacity and will continue to apply until replaced by coverage under an approved death and disability insurance policy. (9) The rescission of the former death and disability award does not affect any entitlement to payments under that award in relation to the death or discharge of a police officer from the NSW Police Force before the rescission of the former award. (10) This section is subject to the regulations made under clause 2 of Schedule 4. 22Relevant transitional provisions are also contained in cl 131B of the Police Regulation 2008: 131B Transitional arrangements for partial and permanent disability payments to apply for limited period (1) The provisions of the Crown Employees (Police Officers Death and Disability) Award 2005 (rescinded by the Police Amendment (Death and Disability) Act 2011) relating to payments for partial and permanent disability continue to apply, despite the rescission of that Award, in respect of the disability of a police officer in any of the following cases if the police officer has not been discharged from the NSW Police Force before the commencement of Part 9B of the Act: (a) The police officer had been unfit for duty because of the disability for a total period of at least 4 months during the previous 8 months before 30 November 2011 and the NSW Police Force had, on or before that date, received a report or certificate from the police officer's nominated treating medical practitioner indicating that: (i) the police officer had reached maximum medical improvement, and (ii) the police officer should be discharged from the NSW Police Force. (b) The NSW Police Force had, on or before 25 November 2011, arranged an independent medical examination of the police officer to determine whether the police officer was permanently incapacitated for work as a police officer as a result of the disability. (c) The NSW Police Force had, on or before 30 November 2011, received a report of an independent medical examination of the police officer and the report indicated that the police officer was permanently incapacitated for work as a police officer as a result of the disability. (2) Subclause (1) applies instead of the provisions of section 199K (3) of the Act, and those provisions cease to have effect. (3) Subclause (1) ceases to have effect on 9 December 2012. This subclause does not apply to a police officer who has been discharged from the NSW Police Force before that date because of a disability. (4) In this clause, independent medical examination means a medical examination of a police officer by a medical practitioner who is engaged under arrangements made by the NSW Police Force with respect to the medical examination of police officers. 23Section 6 of the IR Act contains the definition of an 'industrial matter' and is relevant to Metlife's third Contention that the proceedings do not involve an industrial matter: 6 Definition of industrial matters (1) General definition In this Act, industrial matters means matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry. (2) Examples Examples of industrial matters are as follows: (a) the employment of persons in any industry (including the employment of minors, trainees, apprentices and other classes of employees), (b) the remuneration (including rates of pay, rates for piece-work and allowances) for employees in any industry, (c) the conditions of employment in any industry (including hours of employment, qualifications of employees, manner of work and quantity of work to be done), (d) part-time or casual employment (including part-time work agreements), (e) the termination of employment of (or the refusal to employ) any person or class of persons in any industry, (f) discrimination in employment in any industry (including in remuneration or other conditions of employment) on a ground to which the Anti-Discrimination Act 1977 applies, (g) procedures for the resolution of industrial disputes, (h) the established customs in any industry, (i) the authorised remittance by employers of membership fees of industrial organisations of employees, (j) the surveillance of employees in the workplace, (k) the mode, terms and conditions under which work is given out, whether directly or indirectly, to be performed by outworkers in the clothing trades. Metlife's contentions No Relevant Award Rights Contention 24The second respondent contended that as the Award had been rescinded by legislation it has no further legal effect and no longer regulates the rights of the parties to the Award. The basis of this contention was s 199l of the Police Act, which is set out above. 25It was the second respondent's submission that rescission had complete retrospective effect subject to two limited circumstances in which: (i) the statutory rescission of the Award did not have effect according to its terms; and (ii) rights that existed under the Award continued, under transitional arrangements, to regulate the rights of persons that were bound by the Award. These circumstances, according to the second respondent, were: (i) Section 199K (headed "Savings and transitional arrangements") which provides that in certain circumstances (not relevant here) that provisions of the Award which relate to payments for "temporary and partial incapacity" continue to apply despite the rescission of the Award; and (ii) Regulation 131B of the Police Regulations 2008 (NSW) which (by virtue of subsection 199K(10) of the Amending Act) applies and provides that the Award (again, in circumstances not relevant here) which relate to payments for "partial and permanent disability", continue to apply for a limited period. 26The second respondent submitted these two transitional provisions were not presently relevant because: (i) this is a case about "total and permanent disability" (TPD) benefits; section 199K only deals with provisions of the Award which relate to payments for "temporary and partial incapacity"; and (ii) leaving aside any other issues with the applicability of the Regulation, each of the applicants was discharged from the NSW Police Force prior to the commencement of Part 9B of the Police Act and hence Regulation 131B cannot have any application according to its express terms. 27Of critical importance, the second respondent submitted, was the Note to s 199K(3) of the Police Act which makes plain that it is s 199K(8) of the Police Act that deals with the "preservation of entitlements relating to death or permanent and total incapacity under insurance policies taken out pursuant to the [A]ward"; that is, any relevant TPD benefits. 28Accordingly, Metlife submitted, the entitlements (such as they are) of the applicants under insurance policies that have been taken out on their behalf before the commencement of Part 9B of the Police Act on 9 December 2011 were unaffected by the legislative changes that came about by reason of the Amending Act. Such entitlements continued in existence by reason and by virtue of the insurance policies, which were expressly preserved by s 199K(8) of the Police Act and notwithstanding the rescission of the Award. 29Senior counsel for Metlife submitted: If there are no extant rights under the Award, the declaratory relief sought under section 154 of the Industrial Relations Act 1996 (NSW) (IRA) cannot be a declaration "in relation to a matter in which the Commission (however constituted) has jurisdiction" as rights to be vindicated indubitably arise under the insurance polices and not under the Award; there are no present circumstances where the rescinded Award is relevant or where there can be an "industrial dispute" or where the Commission has the function of "hearing or determining other industrial matters": see sections 146 and 154 of the IRC. The proceedings must, as a consequence, be dismissed; the relevant parties will then will be left to their rights under the insurance polices and it is trite law that the applicants have standing to make a claim under the policies and to bring proceedings (in the orthodox manner) against both the present third respondent (Trustee) and the insurer, Metlife. 30In its written submissions in reply, Metlife dealt with submissions by other parties that s 199K(9) of the Police Act, preserved an entitlement to payment under the Award where a police officer was discharged prior to the rescission of the Award as a consequence of an on duty injury that resulted in the police officer suffering total and permanent disablement. I will deal with these submissions when I come to consider Metlife's No Relevant Award Rights Contention under a separate heading. Jurisdiction of Commission Contention 31It was the second respondent's submission that consistently with the rescission of the Award, the jurisdiction of the Commission was attenuated by s 146D of the IR Act. Metlife, nevertheless, acknowledged that this deprivation of jurisdiction was subject to the fact that, prima facie, the Commission in Court Session could continue to have jurisdiction in respect of death and disability payments for police officers provided that body otherwise had jurisdiction under the IR Act. However, it was submitted, by reason of s 146D of the IR Act, the Commission (however constituted) only has jurisdiction where the general prohibition on jurisdiction in respect of death and disability payments for police officers does not apply. In other words, as the Commission does not have jurisdiction or power to make or vary any award or order that provides for death and disability payments to or in respect of police officers, the Commission constituted as the Commission in Court Session does not have power to make binding declarations of right in relation to the provision of death and disability payments. 32Senior counsel for Metlife submitted: The statutory regime works harmoniously - there are some types of awards and orders carved out by section 146D(3) - but none of these particular exceptions can (or would be expected to) apply when the Award does not now regulate any relevant existing rights or responsibilities in relation to TPD benefits. It follows, axiomatically, that the power to make the declarations of right sought by the applicants under section 154 in respect of TPD benefits for police officers does not exist. For reasons explained above, this conclusion is entirely consistent with the evident statutory intention, reflected in section 199K(8) of the Police Act, that the TPD rights of the parties are left only to the insurance policies. Industrial Matter Contention Background 33Some further background is necessary before addressing the second respondent's Industrial Matter Contention. 34FTC (as owner of each policy) established at different times with MetLife (as insurer) two separate group life insurance policies: a. a policy referred to herein as the FSS Basic Policy, established on 1 December 2007; and b a policy referred to as the Blue Ribbon Policy, established 1 July 2005. 35The FSS Basic Policy does not arise out of, and exists entirely independently of, the Award. 36The Blue Ribbon Policy was established to meet the insurance needs of FTC providing the total and permanent disability benefit provided for in the Award. 37By reason of the applicants' basic contributions, they each became a "Covered Person" for the purposes of and under the FSS Basic Policy. By reason of their contribution under the Award, the applicants each became an "Insured Member" for the purposes of and under the Blue Ribbon Policy. 38Under the Award, there was available to police officers who made the contributions described in cl 5 of the Award, subject to the provisions set out therein, the potential to claim benefits for partial and permanent disability benefit or for total and permanent disability (cll 7, 8, and 9). 39The Blue Ribbon Policy provided, amongst other things that if an Insured Member suffered from total and permanent disablement, as defined in the Policy, MetLife would pay to FTC the sum insured in respect of that member (the Blue Ribbon TPD benefit). 40The FSS Basic Policy provided, amongst other things, that if a Covered Person suffered from total and permanent disablement, as defined in the FSS Basic Policy, MetLife would pay to FTC the sum insured in respect of that Covered Person (the FSS Basic Policy TPD benefit). 41The applicants made a claim with FTC for both the Blue Ribbon TPD benefit and the FSS Basic Policy TPD benefit. 42Subsequently, FTC made claim upon MetLife for payment of the Blue Ribbon TPD benefit in respect of each applicant (FTC's Blue Ribbon Policy claim). At the same time, by the same process, FTC made claim upon MetLife for payment of the FSS Basic Policy TPD benefit in respect of the applicants (FTC's Basic Policy claim). 43MetLife enquired into and considered the FTC claims in relation to Hahn and formed the view that an entitlement to each of the Blue Ribbon Policy TPD benefit and the FSS Basic Policy TPD benefit had not arisen. MetLife declined FTC's claims. In relation to Dee, Wild and Jifkins apparently no determination has yet been made regarding any TPD entitlement 44FTC sought a review of MetLife's determination in relation to Hahn. MetLife reviewed FTC's claims, and confirmed its view that an entitlement to the Blue Ribbon TPD benefit and the FSS Basic Policy TPD benefit had not arisen. MetLife advised FTC of the outcome of this review. 45MetLife's rejection of FTC's claims went to Claims Review Committees (the CRCs), as provided for pursuant to cl 9 of the Blue Ribbon Policy and cl 18 of the FSS Basic Policy. FTC and MetLife were in disagreement as to the outcome of the deliberation of the CRCs in respect of FTC's claims. FTC asserted that the CRCs determined that these claims should be met, and that MetLife was bound by these determinations. MetLife disputed FTC's assertions in respect of the nature and effect of any such purported determinations of the CRC (the disputed CRC determinations). Metlife's arguments 46Metlife submitted the only basis under the IR Act that would afford the Court jurisdiction in this matter was if the declarations of right being sought were in relation to 'industrial matters' as defined in s 6 of the IR Act, that is "matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry." 47The factors identified by the second respondent that it claimed demonstrated the applications were not in relation to an industrial matter were as follows: (1)the applicants are no longer employees of the NSW Police Force. (2)The applicants are seeking to specifically enforce a purported determination under an internal alternate dispute resolution provision within the Blue Ribbon Policy that is contractual in nature, and, therefore, to the extent that it is operative, informs the conduct of the contracting parties: FTC and MetLife. This is the mechanism by which the applicants are seeking to obtain the Total and Permanent Disablement (TPD) benefit under the Blue Ribbon Policy. (3)MetLife is not a party to the Award, and is not bound by it. MetLife is merely the insurer under the Blue Ribbon Policy, to which FTC is the only other contracting party. Although the Award-context may inform debate about the meaning of the language used in the Policy, it cannot ultimately govern construction of the Policy: see cl 12.2 of the Policy. Ultimately, the Policy must be construed according to its terms as a commercial instrument: Crown in the Right of the State of New South Wales v Maund [2013] NSWSC 183 at [125] per Lindsay J. (4)The applicants' right to maintain an action under the Policy seeking to enforce private entitlements is a right that arises under the general law. Its existence and content arise irrespective of the Award. In other words, the fact that the Policy arises out of the context of the Award has no bearing on, or relationship to, this right. (5)The opinion to be formed by MetLife under the Policy is one solely governed by the terms and conditions of the Policy. The Award does not, in any respect, govern it. The definition of TPD under the Award is materially different to the definition of TPD under the policy. In this respect, declarations sought by the applicants that that they suffer a total and permanent disablement within the meaning of cl 3 of the Award, is wholly irrelevant to the exercise of determining whether or not MetLife has any obligation under the policy to pay to FTC the relevant benefits for the applicants. (6)MetLife has no obligation to determine anything in accordance with the Award, or to pay anything in accordance with the Award. In fact, for MetLife to act in any respect in accordance with the Award, rather than in accordance with the Blue Ribbon Policy, would result in MetLife acting in breach of the Policy. (7)Neither the nature of the cover provided by, nor the ostensible provisions of, the Policy are said to be inadequate or otherwise not in accordance with that contemplated by the Award. In other words, it is to be taken that the Policy fully performs its function contemplated by the Award. What is in issue is no more than the attempted enforcement of an asserted private right under a third-party contract that complies with the contract contemplated by the Award. (8)It follows that what is in issue is not a matter affecting or relating to work done in an industry. (9)Equally, it is not a matter affecting or relating to privileges or rights of employees in an industry. If the entitlement to a TPD benefit, secured under a policy of insurance contemplated by the Award, is to be considered to be a "privilege" or a "right" of the applicants as employees in an industry, then that privilege or right in fact is established in the Policy. The applicants' personal complaints about the way that the Policy operated in their particular circumstances do not make it an industrial matter within the meaning of the Act. Principles of statutory interpretation 48The proceedings require the Court to construe the Police Act, Police Amendment (Death and Disability) Act, the Police Regulation, the IR Act and the Award. The rules governing statutory interpretation have been referred to in a number of recent decisions of the Commission: see Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales and Department of Education and Communities [2013] NSWIRComm 32; Re Crown Employees Wages Staff (Rates of Pay) Award 2011 & Ors [2013] NSWIRComm 53; Re Crown Employees Wages Staff (Rates of Pay) Award 2011 & Ors (No 3) [2013] NSWIRComm 109; and Ambulance Service of NSW v Health Services Union East [2014] NSWIRComm 4 (where Backman J dealt with the principles governing construction of industrial awards at [13]-[20]). 49In particular: (1)the process of statutory construction must begin with a textual analysis of the words of a provision - that is, a consideration of the ordinary and grammatical meaning of the words: Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 285 ALR 27 at [26] per French CJ, Hayne, Kiefel and Bell JJ; Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 220 IR 445; (2012) 290 ALR 647at [41] per French CJ, Crennan, Gummow and Hayne JJ; Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Thelander [2012] HCA 56; (2012) 293 ALR 412 at [23] per French CJ and Hayne J; (2)the legal meaning of a provision of a statute is ascertained by reference to the language of the statute viewed as a whole: Certain Lloyd's Underwriters at [26] per French CJ and Hayne J and [88] per Kiefel J. The purpose of the statute resides in its text and structure: Certain Lloyd's Underwriters at [25] per French CJ and Hayne J; (3)context may also be considered "in a broader sense as including the general purpose and policy of the legislation, in particular the mischief to which the statute is directed and which the legislature intended to remedy": Certain Lloyd's Underwriters at [88] per Kiefel J. (4)whilst consideration of extrinsic materials should not displace the clear meaning of the text of a provision, the purpose of a provision may be elucidated by appropriate reference to them: Certain Lloyd's Underwriters at [70] per Crennan and Bell JJ; (5)a statutory provision that confers jurisdiction upon a court should not be given a narrow construction: Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72 at [11]; (6)a conferral of jurisdiction upon a court or tribunal will not be taken to have been withdrawn, unless the withdrawal of jurisdiction is clear and unmistakeable: Shergold v Tanner [2002] HCA 19; (2002) 209 CLR 126 at [34]. "It is contrary to long-established principle and wholly inappropriate that the grant of power to a court (including the conferral of jurisdiction) should be construed as subject to a limitation not appearing in the words of that grant. See Hyman v. Rose (1912) AC 623, at p 631; FAI General Insurance Co. Ltd. v. Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268 at p 290": Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178 per Gaudron J at 205; (7)awards should be interpreted in a similar fashion to other enactments: George A Bond & Co Ltd (in liq) v McKenzie (1929) 28 AR (NSW) 498 at 503; Short v F W Hercus Pty Ltd (1993) 40 FCR 511 at 520 ; 46 IR 128 at 136-137; Perisher Blue Pty Ltd and Others v Australian Workers' Union (1999) 91 IR 274 at 283 - 284; (8)in construing an award, one must always be careful to avoid a too literal adherence to the strict technical meaning of words, and must view the matter broadly, and after giving consideration and weight to every part of the award, endeavour to give it a meaning consistent with the general intention of the parties to be gathered from the whole award: George A Bond at 503-504. But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning: Kucks v CSR Limited (1996) 66 IR 182 at 184; (9)the modern approach to award construction envisages taking into account the wider context underpinning the making of the provision under consideration. This means having recourse to material relevant to the history of the development of the provision and the surrounding circumstances, generally, which led to its making. This approach must necessarily be subject to any countervailing considerations including considerations of weight, in particular what weight may be attributed to the content of the material bearing in mind the circumstances under which the material came into existence: Ambulance Service of NSW v Health Services Union East at [20]; (10)"The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the manner in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, or for that matter to vindicate an immunity or privilege, notwithstanding that before the change in the law was made, the accrual or establishment of the rights, liabilities, immunity or privilege was complete and rested on events or transactions that were otherwise past and closed. The basis of the distinction was stated by Mellish LJ in Republic of Costa Rica v Erlanger (1876) 3 Ch D 62 at 69. 'No suitor has any vested interest in the course of procedure, nor any right to complaint, if during the litigation the procedure is changed, provided, of course, that no injustice is done'.": Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267 per Dixon CJ. Consideration of Metlife's No Relevant Award Rights Contention 50As it may be seen, cl 10 of the Award contemplates the establishment by the NSW Police Force of an insurance scheme with FTC to be known as the First State Super Insurance Scheme. The Scheme was established in or about the time of commencement of the Award: Crown in right of the State of NSW v Maund / Maund v FSS Trustee Corporation [2013] NSWSC 183 at [6]-[7]. 51When a police officer suffers injury or illness, the Award relevantly specifies an entitlement to a benefit for total and permanent disability: cl 7.1. If a police officer who is subject to the Award receives payment of a partial and permanent disability benefit under cl 9 of the Award and then seeks and obtains payment of a TPD benefit (the higher sum), the police officer is obliged to refund the partial benefit. When the partial and total benefit is paid, the police officer is required to enter into a deed agreeing to repay that benefit should the TPD benefit be recovered. 52Under the terms of the Scheme, FTC was entitled to effect insurance coverage in respect of the benefits payable (see Rule 11.2 of the Scheme). At the time of commencement of the Award, FTC effected an insurance policy with Metlife for the purposes of covering the obligation to pay the disability benefits as set out in the Award. As it was noted in Maund at [5], the terms of the Award were within the contemplation of both FTC and Metlife at the time that Metlife issued the policy (that is, December 2005). 53As I stated earlier, each of the applicants made a claim for payment of the TPD benefit, but none of the applicants have received a payment of the TPD benefit. It appears that, at least as far as Hahn is concerned, Metlife determined that the applicant was not TPD in accordance with the policy definitions, which appear to be largely the same as that contained in the Award, with one major exception, namely, that in cl 6 to the First Schedule of the policy, in the case of an "Insured Member" whose normal hours are 15 hours each week or more at the time of the "Insured Event" giving rise to the claim: The Insured Member having been absent from their Occupation with the Employer through injury or illness for six consecutive months and having provided proof to our satisfaction that the Insured Member has become incapacitated to such an extent as to render the Insured Member unlikely ever to engage in any gainful profession, trade or occupation for which the Insured Member is reasonably qualified by reason of education, training or experience. (emphasis added) 54As I earlier explained, the second respondent relies on the Police Amendment (Death & Disability) Act and the amendments it made to the Police Act to contend the Award has been rescinded with retrospective effect and, therefore, it has no further legal effect and no longer regulates the rights of the parties to the Award, subject to certain exceptions. 55Section 199l of the Police Act is clear in its terms. It states that the Award is rescinded. The applicants submitted, however, that in the absence of a clear indication to the contrary, s 199l would not be construed to affect rights and obligations that arose prior to that provision commencing. Presumably, they were relying on cases such as Maxwell v Murphy; Fisher v Hebburn [1960] HCA 80; (1960) 105 CLR 188 at 194 per Fullagar J. 56It was further submitted the entitlement or right of a police officer under the Award to a lump sum payment is determined by cll 7 and 8. Thus, the "right" to a lump sum payment arose in the event of an on duty or off duty injury resulting in death or total and permanent disablement. In each case it was submitted the applicants' rights accrued prior to the commencement of the Police Amendment (Death & Disability) Act: see Stevens v The Railway Commissioners for New South Wales (1930) 31 SR (NSW) 138 at 143 per Ferguson J (James and Stephen JJ agreeing); TNT Australia Pty Ltd v Horne (1995) 36 NSWLR 630 at 637 per Kirby P (with whom Priestley JA agreed generally); and Speirs v Industrial Relations Commission of New South Wales & Anor [2011] NSWCA 206 at [77]-[85] per Giles JA (with whom Allsop P and Hodgson JA agreed). 57Whilst Maxwell v Murphy and the other authorities cited were concerned with amendments to statute law, it seems to me the principles there referred to regarding the accrual of rights apply equally to awards, which are legally binding instruments made pursuant to the IR Act. 58The second respondent submitted, nevertheless, there were indications in s 199K of the Police Act and r 131B of the Police Regulation that the intention was to cause the Award to have no further legal effect (subject to exceptions) on and after the commencement of the Police Amendment (Death & Disability) Act. The indications, according to Metlife, were (i) that s 199K(3) provided that in certain circumstances provisions of the Award which relate to payments for "temporary and partial incapacity" continue to apply despite the rescission of the Award; and (ii) r 131B provides that the Award provisions which relate to payments for "partial and permanent disability", continue to apply for a limited period. It appears to have been submitted that because specific exceptions are mentioned, this reinforced the correctness of a construction that other than these specific exceptions the Award no longer had any force on or after commencement of the Police Amendment (Death & Disability) Act. 59Additionally, it was submitted the Note to s 199K(3) ["Note. See subsection (8) for preservation of entitlements relating to death or permanent and total incapacity under insurance policies taken out pursuant to the award"] makes it plain that insofar as entitlements relating to death or permanent and total incapacity were concerned the Award ceased to apply upon commencement of the amending Act. This was because s 199K(3) was concerned with the provisions of the Award relating to payments for temporary or partial incapacity and does not mention permanent and total incapacity. The Note, however, does address the question of permanent and total incapacity by referring to s 199K(8), which in turn provides that s 199K does not affect any entitlements under an insurance policy that has been taken out on behalf of police officers before the commencement of this Part. The asserted implication was that the Note to s 199K(3) indicated that entitlement to benefits for total and permanent incapacity were not to be derived from the Award, but rather from an insurance policy that had been taken out on behalf of police officers before the commencement of Pt 9B of the Police Act. That is to say, preservation of entitlement to benefits for total and permanent incapacity was a matter to be determined by the insurance policy and not the Award. 60Metlife submitted further support for its position could be found in r 131B of the Police Regulation (applied by s 199K(10)) in that the regulation specifically provides that the provisions of the Award relating to payments for "temporary or partial incapacity" (not a phrase used in the Award) continue to apply, despite the rescission of the Award, in respect of the disability of a police officer in certain defined cases. The implication, it appears, that the second respondent wishes the Court to accept is that as no similar provision is made in the Regulation for the preservation of Award provisions relating to total and permanent disability, those Award provisions have been rescinded with retrospective effect. 61The first thing to note about this aspect of the second respondent's submission is that s 199K(3) and the Note that goes with it have no application. Regulation 131B(2) provides that r 131B(1) applies instead of the provisions of section 199K (3) of the Act, and those provisions cease to have effect. Indeed, it seems s 199K(3) never came into effect, as r 131B commenced operation on the same day as that section, namely, 9 December 2011. That leaves s 199K(8) and r 131B(1) to be considered. 62Section 199K(8) is a savings provision that makes clear that any entitlements under existing insurance policies are not impacted upon by the new laws. It says nothing specifically about whether the entitlements under the Award relating to TPD survived the transitional provisions, although the accompanying Note indicates that existing insurance policies taken out with First State Super cover police officers for death and for total and permanent incapacity and will continue to apply until replaced by coverage under an approved death and disability insurance policy. 63As I have stated, r 131B(1) has the effect of saving the provisions of the Award relating to payments for "partial and permanent disability" (which is not a phrase used in the Award) in certain cases if the police officer had not been discharged from the NSW Police Force before the commencement of Part 9B of the Act. Regulation 131B says nothing specific about TPD. 64 It does not seem to me that the exceptions referred to by the second respondent in s 199K and the Regulation, neither of which relate to total and permanent disability, even taken together with s 199l, are of such a nature as to, of themselves, make it 'reasonably certain' (see Maxwell v Murphy) that the legislature's intention was to change the law to extinguish any right or entitlement of a police officer under the Award in respect of total and permanent incapacity. Neither the Explanatory Notes nor the second reading speech relating to the Police Amendment (Death & Disability) Bill throw any light on the issue. 65The applicants, moreover, relied in particular on s 199K(9) to contend that provision preserved an entitlement to payment under the Award where a police officer was discharged prior to the rescission of the Award as a consequence of an on duty injury that resulted in the police officer suffering total and permanent disablement. Section 199K(9), it will be recalled, is in the following terms: (9) The rescission of the former death and disability award does not affect any entitlement to payments under that award in relation to the death or discharge of a police officer from the NSW Police Force before the rescission of the former award. 66It was submitted for the applicants that the reference in s 199K(9) to "former death and disability award" is a reference to the Award: see s 199K(1); each of the applicants suffered illness or injury whilst on duty; each of the applicants was medically discharged from the NSW Police Force before the rescission of the Award; each received payment of a partial and permanent disability benefit from the NSW Police Force in accordance with cl 9 of the Award; and under cll 7 and 10 of the Award an officer is entitled to a lump sum payment in the event that an on duty injury results in the police officer suffering total and permanent disablement. It is the entitlement under cll 7 and 10 that each applicant now seeks. 67Metlife submitted in reply, however, that a textual analysis of s 199K(9), combined with its contextual analysis of ss 199I, 199K(8) and r 131B, showed that the provision did not achieve what the applicants claimed. Metlife submitted the text revealed that in order for the subsection to apply, three conditions must all be satisfied: (i) the relevant claim was made under the Award; and (ii) the claims were in relation to the death or discharge of the relevant claimant; and (iii) an entitlement to payment had occurred before the rescission of the Award, that is, by 9 December 2011. Metlife submitted none of these conditions were satisfied. 68In my view the question raised by s 199K(9) is whether any of the applicants had an entitlement to payment under the Award, they each having been discharged before the rescission of the Award. I do not think that can be answered in the affirmative. 69It is true that cl 7.1 of the Award provided that police officers who contribute under cl 5 shall be entitled to a lump sum payment in accordance with Schedule A to the Award in the event that an on duty injury relevantly resulted in a police officer suffering total and permanent disablement. However, the critical question arises as to whether the police officer suffered TPD as a result of an on duty injury in order to be so entitled. Clause 10.8 of the Award provided that entitlement to receive a lump sum benefit from the First State Super insurance scheme shall be assessed in accordance with the terms of the First State Super Trust Deed and Policy Document. That assessment, including an assessment of whether the former officer suffered TPD in accordance with the definition in cl 6 to the First Schedule of the policy, was for Metlife to make, subject to certain dispute resolution procedures that were to be followed in the event of a dispute. In relation to the applicants, Metlife had apparently determined either that no TPD was suffered or it was yet to undertake an assessment. 70In those circumstances, it could not be said in respect of the applicants that there was entitlement to payment subsisting in relation to discharge prior to rescission of the Award. The entitlement only arises once the police officer has been determined as TPD and in none of the cases before the Court had that been determined prior to the rescission of the Award. 71In relation to the word "discharge", contrary to the second respondent's submissions, I do not think anything turns on it. Clause 1.2.1 of the Award relevantly provides that the "intentions and commitments" of the Award are to provide benefits on medical discharge in the event that an on duty injury results in total and permanent disablement of a police officer. So that under s 199K(9) any entitlement to payments under the Award "in relation to the discharge" of a police officer, was an entitlement in the event that an on duty injury resulted in total and permanent disablement of that officer and the officer was consequently discharged from the Police Force. 72My view as to how s 199K(9) is to be construed is that the rescission of the Award did not affect an entitlement to payments under the Award in relation to the discharge of a police officer from the NSW Police Force in the event that it had been determined that an on duty injury had resulted in total and permanent disablement of that officer and where, as a consequence, the officer had been discharged before the rescission of the Award. Section 199K(9) would also have work to do in relation to an entitlement to payment for partial and permanent disability under cl 9 of the Award where the responsibility for payment of any benefit falls on NSW Police. Indeed, I think s 199K(9) is primarily directed to payments under cl 9 of the Award. 73The fact that the Award provided that an assessment as to entitlement for TPD was to be carried out in accordance with the terms of the First State Super Trust Deed and Policy Document did not alter the fact that the entitlement to payment may have arisen under the Award. The entitlement clearly arose under cl 7.1; the assessment process owed its existence to the Award (see cl 10.8); it was authorised by the Award; the Award provided for the tribunal that made the Award to have any dispute as to entitlement to receive a lump sum payment from the First State Super insurance scheme to be referred to it for final determination (see cl 10.8). In the present proceedings, however, no entitlement to payment existed before rescission of the Award because no determination had been made in accordance with the process prescribed by the Award that the officer suffered TPD as a result of an on duty injury thus giving rise to the entitlement. Consequently, s 199K(9) is of no assistance to the applicants. 74The following considerations, taken together, lead me to the conclusion, and I so find, that no accrued right exists under the rescinded Award to pursue claims for benefits in relation to an on duty injury that was alleged to have resulted in a police officer suffering total and permanent disablement, such officer having been medically discharged prior to 9 December 2011: (1)The Award was rescinded with effect from 9 December 2011. (2)Regulation 131B of the Police Regulation makes provision for the Award relating to payments for partial and permanent disability to continue to apply, despite the rescission of the Award, in respect of the disability of a police officer in certain defined cases if the police officer has not been discharged from the NSW Police Force before the commencement of Part 9B of the Police Act. No comparable savings provision exists in the Act or the Regulation in relation to total and permanent disability. (3)Section 199K(8) provides that s 199K does not affect any entitlements under an insurance policy that had been taken out on behalf of police officers before the commencement of this Part. The Note to s 199K(8) seeks to avoid doubt by stating, "Existing insurance policies taken out with First State Super cover police officers for death and for total and permanent incapacity and will continue to apply until replaced by coverage under an approved death and disability insurance policy." (4)The existing insurance policies taken out with First State Super to cover police officers for death and for total and permanent incapacity are those policies referred to in the Award. Whilst the Award prescribed an entitlement to a payment for TPD, assessment of the entitlement was to be in accordance with the terms of the First State Super Trust Deed and Policy Document. That was not done prior to the Award's rescission. The benefits payable under the insurance policy for TPD are the same as those prescribed in Annexure A to the Award. There would seem to be little utility in the legislature saving entitlements under an insurance policy and, in addition, preserving what were, in effect, the same entitlements available under the Award. (5)Section 199K(9) provides that the rescission of the Award did not affect any entitlement to payments under the Award in relation to the death or discharge of a police officer from the NSW Police Force before the rescission of the Award. Whilst it may be accepted that an entitlement to payments had accrued to a police officer in relation to TPD before the rescission of the Award, it is significant that a right to claim an entitlement to payment under the Award was not preserved. Preservation of such a right would, in practice, be superfluous in light of s 199K(8). Consideration of Metlife's Jurisdiction of Commission Contention 75Metlife's reliance on s 146D of the IR Act to contend the Commission in Court Session has no jurisdiction to make orders that provide for death and disability payments to or in respect of police officers is, I think, misplaced. Section 146D(6) could not be clearer: it provides the section does not apply to the Commission in Court Session. In other words, in considering whether the Court could make declaratory orders in relation to a TPD benefit to be paid to a police officer, s 146D has no role to play. 76Section 154 of the IR Act provides that the Commission in Court Session may make binding declarations of right in relation to a matter in which the Commission, however constituted, has jurisdiction. Whilst the Commission as distinct from the Court has no jurisdiction to deal with death and disability payments to police officers, the Commission, constituted as the Court, has jurisdiction to make declaratory orders in relation to an industrial matter. If the applicants' claims are in relation to an industrial matter, the Court has jurisdiction. This is confirmed by earlier authorities. 77The Full Bench in Public Service Board (NSW) v The Public Service Association (NSW) (1986) 14 IR 445, considered the extent of the newly introduced power to make declaratory orders in s 30A(2) of the Industrial Arbitration Act 1940. The Court stated at 448-449: The new power to make declaratory orders is couched in language which is consistent with that used in the Supreme Court Act, clearly demonstrating an intention that the Commission is to be vested with a discretionary power to make declaratory orders similar to that of the ordinary courts.... There can be little room to question in the present case, which concerns an employee in the Public Service whose rate of salary is regulated by an industrial award made under the Industrial Arbitration Act, that the new power is intended to be exercised in a situation in which a question arises whether or not the employee has been lawfully deprived of his entitlement to salary, either as a consequence of some alleged incorrect application of award provisions, or of the terms of his contract of employment or some applicable statutory prescription, in this case the Public Service Act. 78Hungerford J considered the scope of s 154 in Ford v SAS Trustee Corporation [2000] NSWIRComm 92; (2000) 98 IR 444. In that case the applicant had sought declarations in relation to the length of his service as a police officer in the Police Service of New South Wales for the purpose of enabling the proper calculation of his statutory superannuation benefits following his medical discharge from the Police Service. At [76] his Honour stated: The fundamental nature of the declaratory power in s.154 of the Industrial Relations Act is, in the opinion I hold, based on the existence of a matter which the Commission (either as the Commission or sitting as the Court) has jurisdiction and even though no consequential relief is or could be claimed. In other words, a declaration of right may be made once there be identified a matter otherwise within the Commission's or the Court's jurisdiction, regardless whether any proceedings exist as to that matter, provided the declaration as sought relates to it. 79At [79]-[80] Hungerford J further stated: [79].... What matters, it seems to me, was the right or entitlement of the applicant to certain leave and whether the declaration sought was in relation thereto, provided the subject matter of the leave was otherwise within power. I think it may be undoubted that the Commission has jurisdiction as an industrial matter in respect of leave for police officers: see Industrial Relations Act in ss 6(1), 6(2)(c) (g) and (h), 10, 136, 404 and 405(1)(b); see also Police Service Act in ss 84, 85(1) and 218(1). [80] It follows, I would conclude, that there is power under s 154 of the Industrial Relations Act to make a declaration as to the true nature of the period of the applicant's leave without pay from 5 August 1989 to 21 September 1995. I would only add, in response to Mr Willis' submission that industrial matters concern the relations of employers and employees, that at the relevant time the applicant was employed by the second respondent, albeit on leave, and as to which a dispute arose as to the nature of the leave. 80The Full Bench in Tempo Services Ltd v Strezouski [2005] NSWIRComm 329, stated (at [43]-[44]): [43] The power to grant declaratory relief under s.154 is provided only to the Commission in Court Session although the power is expressed in extremely wide terms and may be exercised and respect to any matter "in which the Commission (however constituted) has jurisdiction". That phrase means that the Court Session may grant declaratory relief in respect of any matter in which the Court Session of the Industrial Relations Commission has jurisdiction. [44] It is also important to recognise that the Commission in Court Session is not only a superior court of record but is a separate and distinct body to the Commission otherwise constituted: Taudevin v Egis Consulting Australia Pty Ltd (No 1) (2001) 131 IR 124 at 171 - 172. 81The conclusion that the Court's power to make declaratory orders is unfettered by s 146D immediately raises the question of whether there is a claim before the Court in relation to an industrial matter, which brings me to Metlife's next Contention. Consideration of Metlife's Industrial Matter Contention 82The second respondent chose not to address each of the orders sought in the applications for declaratory relief in order to show they were beyond power, but rather chose a global approach by focusing on the relief sought in all proceedings as summarised in the submissions filed on behalf of the applicants, namely, that each of the applicants "seeks declarations from this Court as to his entitlement to the TPD benefit as contemplated by clause 10 of the Award., (sic) and as insured by Metlife." 83The second respondent may be proved ultimately right in taking that approach, because it should be apparent from the way in which I have dealt with the second respondent's first Contention that the Court does not have the power to declare an entitlement to the total and permanent disability benefit provided for in cll 7 and 10 of the Award. No such entitlement exists under the Award because, for the reasons I have explained, the Award was rescinded and no accrued right remained to pursue claims relating to TPD benefits. 84However, as the first and third respondents made very clear in their submissions there has been no focus on the actual orders sought by the applicants in their applications. In the light of this judgment, it may be that none of the orders sought constitute matters in respect of which the Court has power. Nevertheless, as the parties have not yet specifically addressed each of the applications I am not inclined to do that unilaterally having regard to my findings thus far. 85Moreover, it does not necessarily follow that because no entitlement exists under the Award the Court is deprived of jurisdiction. 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. 86In that respect, it does not appear to be in contest that the Court may make binding declarations of right: see ss 153(1)(b) and 154 of the IR Act. It also does not appear to be in contest that if a "matter" as referred to in s 154 is an industrial matter, the Court has jurisdiction to make a binding declaration of right in relation to that industrial matter (in this respect, I note the second respondent's written submission filed on 24 December 2013 accepts that "...there is only jurisdiction if these proceedings concern an industrial matter within the meaning of the Act."). 87Section 6(1) of the IR Act provides a general definition of "industrial matters" as meaning "matters or things affecting or relating to work done or to be done in any industry, or the privileges, rights, duties or obligations of employers or employees in any industry." Section 6(2) provides a list of examples of industrial matters. 88The general principles governing the granting of declaratory relief were set out in the judgments of the High Court in Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 581-582, 595-597. Mason CJ, Dawson, Toohey and Gaudron JJ expressed the principles as follows: It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which "(i)t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise."(26) Forster v. Jododex Aust. Pty. Ltd. [1972] HCA 61; (1972) 127 CLR 421, per Gibbs J. at p 437. However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions (27). See In re Judiciary and Navigation Acts [1921] HCA 20; [1921] HCA 20; (1921) 29 CLR 257. The person seeking relief must have "a real interest"(28) Forster (1972) 127 CLR, per Gibbs J. at p 437; Russian Commercial and Industrial Bank v. British Bank for Foreign Trade, Ltd. (1921) 2 AC 438, per Lord Dunedin at p 448. and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that (have) not occurred and might never happen"(29) University of New South Wales v. Moorhouse [1975] HCA 26; (1975) 133 CLR 1, per Gibbs J. at p 10 or if "the Court's declaration will produce no foreseeable consequences for the parties"(30). Gardner v. Dairy Industry Authority (N.S.W.) (1977) 52 ALJR 180, per Mason J. at p 188; see also per Aickin J. at p 189; 18 ALR 55 at pp 69, 71 respectively. 89In Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 139 ALR 663 at 670 - 671 Lockhart J, after referring to Ainsworth and Oil Basins Limited v The Commonwealth of Australia [1993] HCA 60; (1993) 178 CLR 643 at 648 per Dawson J, summarised the principles. In his paper, 'Declaratory Relief Since the 1970s', the Hon Wayne Martin, Chief Justice of Western Australia, paraphrased Lockhart J's summary as follows: The proceeding must involve the determination of a question that is not abstract or hypothetical. There must be a real question involved, and the declaratory relief must be directed to the determination of legal controversies. The answer to the question must produce some real consequences for the parties. The applicant for declaratory relief will not have sufficient status if relief is 'claimed in relation to circumstances that (have) not occurred and might never happen,' or if the court's declaration will produce no foreseeable consequences for the parties. The party seeking declaratory relief must have a real interest to raise it. Generally there must be a proper contradictor (citations omitted). 90I would add that (i) there is no requirement for a cause of action in declaratory matters (see Crewdson v Department of Community Services and anor [2002] NSWIRComm 121 at [64]; 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 [152]; PW Young QC, Declaratory Orders (2nd ed, Butterworths, 1984) at [206]; (ii) it is no objection to an application for declaratory orders that the applicants in the present proceedings are not parties to the insurance contracts. The grant of a declaratory order does not require the moving party to be privy to the contract and a third party may have a relevant interest that permits it to apply for declaratory relief: 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 [162]-[175]; Aussie Airlines at 414; Edwards v Santos Ltd (2011) HCA 8 at [38]; and (iii) In Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 23, Gibbs CJ said, "The word 'right' in the expression 'declarations of right' ... is used in a sense that is wide and loose. It includes what might more precisely be described as privileges, powers and immunities. And the power to make a declaration extends to enable a plaintiff to have it declared that he is under no duty or liability to the defendant..." 91There is a comprehensive analysis of declaratory relief with an emphasis on the history and operation of s 154 in 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 [139]-[175] per Haylen J. I respectfully adopt his Honour's analysis and conclusions. Conclusions 92At 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. 93If 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. 94All four matters constituting these proceedings are listed for directions at 9.30 am on Monday 5 May 2014. 95Costs are reserved. ********** ANNEXURE A Amendments 16 April 2014 - "Industrial Relations Commission" amended to read "Industrial Court of NSW". Amended paragraphs: Coversheet/Jurisdiction 16 April 2014 - "M Lee of Senior Counsel (Second Respondent/Applicant on the Motions)" amended to read "M Lee of Senior Counsel with J Duncan of counsel (Second Respondent/Applicant on the Motions)" Amended paragraphs: Coversheet/Representaion 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: 16 April 2014