ORDER
32 For those reasons, in my opinion, the primary judge did not make the errors of law alleged in the grounds of appeal, and the following order should be made: appeal dismissed with costs.
33 BASTEN JA: I agree with Hodgson JA that the appeal in this matter should be dismissed with costs, for the reasons given by his Honour and for the further reasons set out below.
34 Mr Kennedy was a police officer who suffered personal injury in the course of his work, on two occasions. He suffered an injury to his neck resulting in pain in the neck, shoulders and upper arms. On 31 March 1997 he was struck by a motor vehicle. The injuries then suffered appear to have been aggravated whilst starting an electric generator at the police station on 10 October 2000. On 2 December 2003 he consulted an orthopaedic medico-legal consultant, Dr R.L. Plowman. Dr Plowman documented, in a report of the same date, Mr Kennedy's account of continuing pain in the neck, shoulders and arms, which had affected him since March 1997 and which gave rise, in Dr Plowman's view, to him being "permanently incapacitated for normal policing duties": Report, p 3.
35 Mr Kennedy originally made a "claim for hurt on duty benefits" in late 1998 or early 1999. The claim appears to have been accepted on 21 May 2002, at which stage Mr Kennedy was advised that consideration would also be given pursuant to s 12D of the Police Regulation (Superannuation) Act 1906 (NSW) ("the Superannuation Act") to the payment of "reasonable medical and associated costs which are directly related to this approval". It appears that he was also considered to be entitled to benefits in relation to absence from duty during the period 13 March 2002 to 17 May 2002, the date of injury being identified as 13 March 1997.
36 The present application was made on 23 March 2005, by Mr Kennedy's solicitors. It identified the date of injury as 31 March 1997. It stated that it was "[a]n application for gratuity" made under s 12D of the Superannuation Act. It enclosed a copy of Dr Plowman's report of 2 December 2003. Despite the cryptic nature of that application, it was treated as an application for a payment, which if made under the Workers Compensation Act 1987 (NSW) ("the Workers Compensation Act") would be compensation for non-economic loss payable to a worker "who receives an injury that results in permanent impairment": see s 66(1) in Part 3, Div 4 of the Workers Compensation Act.
37 Payment of gratuities under the Superannuation Act are made by the SAS Trustee Corporation, referred to in the Superannuation Act as "STC". Gratuities payable under s 12D do not include death benefits or compensation by way of weekly income payments, which are covered by Divisions 1 and 2 respectively in Part 3 of the Workers Compensation Act. Gratuities may, however, extend to payments under Division 3 (medical and other expenses), Division 4 (non-economic loss) and Division 5 (property damage).
38 Pursuant to s 12D(3), the STC was obliged not to grant a gratuity unless one of two conditions was fulfilled, the relevant one being that "the injury to which the claim for the gratuity relates is determined … to have been caused by the member being hurt on duty": s 12D(3)(b). The relevant determination was required to be made by the Commissioner of Police: s 12D(4)(a). (It was assumed for the purposes of the appeal that the relevant dates for the application of the Superannuation Act commenced with the date of the application, namely 23 March 2005 and extended to the date of the determination by the District Court, namely 27 October 2006. It is convenient to rely on the legislation as in force on 23 March 2005, it being agreed that subsequent amendments do not affect the present issue.)
39 On 1 June 2005, a delegate of the Commissioner advised in writing of a determination that Mr Kennedy's "injuries to neck, back and referred pain to both arms to which his application dated 23 March 2005 refers was not caused by the member being hurt on duty". No reasons were given and the decision might seem to be inconsistent with the acceptance in May 2002 that Mr Kennedy was unfit for work following not only the incident in March 1997, but also that in October 2000.
40 Pursuant to s 21 of the Superannuation Act, Mr Kennedy had a right to apply to the District Court "for a determination in relation to that decision": s 21(1). Because the District Court Judge making the determination in effect stood in the shoes of the Commissioner and was required to consider the application afresh, the reasons for the rejection by the Commissioner were relevant only to the extent that they might define the issues in dispute. Critically for present purposes, the Commissioner contended in the District Court that the decision should be confirmed because Mr Kennedy had not sustained any permanent impairment or loss of a kind sufficient to give rise to an entitlement under s 66 of the Workers Compensation Act. Truss DCJ held that the question whether Mr Kennedy had sustained a permanent impairment was one for consideration by the STC. Her Honour was satisfied that Mr Kennedy had suffered injury to his neck with referred symptoms into his arms and upper back when serving as a police officer: at [35]. She therefore determined that the injuries to which his application for a gratuity related were caused by his being hurt on duty: at [36].
41 Section 21, conferring jurisdiction on the District Court was inserted into the Superannuation Act by the Police Regulation (Superannuation and Appeals) Amendment Act 1979 (NSW), Schedule 1 (20) ("the 1979 Amendment Act"). In its original form, an application was to be made to the Workers Compensation Commission. In due course the jurisdiction was transferred to the Compensation Court and subsequently, by operation of the Compensation Court Repeal Act 2002 (NSW), the jurisdiction was transferred to the District Court. It now forms part of the "residual jurisdiction" of the District Court under Division 8A of the District Court Act 1973 (NSW). An appeal from the Court in its residual jurisdiction is confined to circumstances where a party is aggrieved "in point of law or on a question as to the admission or rejection of evidence": District Court Act, s 142N. The point of law identified for present purposes is whether the District Court was correct in making a determination without considering whether Mr Kennedy suffered from a permanent impairment. The present appeal thus turns upon the apparently arid question as to the precise boundary between the functions conferred on the STC and those conferred on the Commissioner under s 12D. The question is arid in the sense that a determination of either is open to reconsideration by the District Court.
42 Broadly speaking, claims for compensation turn upon two issues. The first is whether a worker has suffered an injury and, if so, the nature and extent of the injury. The second question is whether the injury arose out of or in the course of employment or otherwise satisfied the conditions identified in ss 4, 9A (employment a substantial contributing factor), 10 (journey claims), and 11 (recess claims) of the Workers Compensation Act, subject to s 14 (exclusion of injury solely attributable to serious and wilful misconduct and self-inflicted injuries). In a crude dichotomy, the relevant questions can thus be identified as those involving quantification of compensation payable and those involving causal connection with employment. Because s 12D(3) and (4) refer to causation, the apparent intention is that the Commissioner should determine questions involving causal connection with employment and the STC questions relating to the nature and extent of compensation payable. On that basis, her Honour was correct in concluding that questions of permanent impairment were for the STC. Thus the Commissioner was required to determine whether Mr Kennedy had received an injury arising out of his work as a member of the police force, whereas the STC would determine whether the injury had resulted in permanent impairment for the purposes of s 66(1) of the Workers Compensation Act.
43 The reference in s 12D to whether "the injury … was caused by the member being hurt on duty" gives rise to some grammatical infelicity if one imports the definition of "hurt on duty" from s 1(2) of the Superannuation Act into s 12D, because the provision would then ask whether "the injury … was caused by the member being injured in such circumstances as would, if the member were a worker within the meaning of the Workers Compensation Act 1987, entitle the member to compensation under that Act".
44 A number of comments may be made about this approach. First, it is said to follow the approach of McHugh J in Kelly v The Queen (2004) 218 CLR 216 at [103] that "once it is clear that the definition applies, the better - I think the only proper - course is to read the words of the definition into the substantive enactment". That may be so, but as his Honour continued, it is then necessary to construe the substantive enactment "in its context and bearing in mind its purpose and the mischief that it was designed to overcome". No doubt, as suggested by Pearce and Geddes, it is an excellent test of good drafting to read a definition into an operative provision to see if it fits comfortably in the text: Statutory Interpretation in Australia (6th ed, LexisNexis, 2006) at [6.55]. However, if the definition as enacted does not fit comfortably into the text, the exercise of construction will need to address any logical or grammatical infelicities that arise.
45 In the present case the definition does not fit comfortably because it results in the concept of an injury caused by a person being injured. However, when the legislative history and statutory purposes are taken into account, there is no reason to suppose that Parliament intended there to be two separate referents for the concept of "injury" and "being injured". Rather, they should be understood as referring to the same condition. Thus, at [84] in Kelly, McHugh J cited with approval a passage from the judgment of Dixon CJ in Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397. In dealing with an amendment providing for increases in the amount of compensation payable under the Workers Compensation Act 1926 (NSW) Dixon CJ noted:
"The very indefinite present tense of the word 'receives' is used, somewhat vaguely perhaps, on the footing that the adult worker is to be the recipient of compensation and the draftsman finds it convenient so to describe him when it becomes necessary to speak of him in order to make the point that the injury must be before and the compensation after the amending Act. It may be illogical to speak of a man as a recipient of a sum of money in prescribing the calculation on the result of which his receiving the money is contingent, but the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed."
46 The same may be said of s 12D, after the definition of "hurt on duty" has been read into the language of either sub-ss (3)(b) or (4)(a).
47 Secondly, the approach proposed by the Commissioner fits ill with the legislative history and the statutory purpose of the 1979 Amendment Act. As explained in Calman v Commissioner of Police (1999) 73 ALJR 1609, police officers in New South Wales have historically stood outside the operation of workers compensation legislation. That has led to amendments to the Superannuation Act from time to time to ensure that police officers are no worse off than workers generally. The 1979 Amendment Act was one example of that process and was described in Calman in the following terms:
"[15] Thus, in 1979 the Amendment Act effected a significant change in the availability of entitlements for members of the police force injured, broadly, during the course of their employment. … Specifically, the limited circumstances referred to in s 10 of the Superannuation Act were expanded to those circumstances provided for by the definition of 'hurt on duty' … . Thereby the existing structure was overlaid by the workers' compensation coverage to which the Minister had referred [in his second reading speech]."
48 The purpose of s 12D was thus to provide access for police officers to benefits which might be obtained under Divisions 3, 4 and 5 of Part 3 of the Workers Compensation Act. Adoption of the phrase "hurt on duty" was a means to that end. As a defined phrase, the definition removed a lengthy circumlocution from the operative provisions. It was not intended to qualify the concept of "injury" as contained in s 4 of the Workers Compensation Act. Thus, the primary entitlement to compensation under the Workers Compensation Act arises under s 9 by reference to the circumstances of a worker "who has received an injury". In picking up that entitlement, the definition of "hurt on duty" has substituted the word "injured" for "received an injury" however, nothing turns on that change in expression, any more than on the double use of the concept of injury in s 12D(3) and (4).
49 Thirdly, the definition of "hurt on duty" does no more than pick up the concept of an injury which triggers an entitlement to compensation. It does not import into the definition an assessment of the nature or extent of the injury or of the compensation payable in respect of it.
50 The Commissioner also relied upon a passage in Calman as suggesting that the determination of the Commissioner in the present case must extend beyond the relationship between the injury and employment as a police officer. The particular passage was in the following terms:
"[38] Once the appellant established that his underlying anxiety disorder was an injury within the meaning of the Workers Compensation Act , he was entitled 'to compensation … under [that] Act' upon proof that his total or partial incapacity for work resulted from that injury. The question then for the Tribunal was whether the appellant's incapacity was causally connected to the underlying anxiety disorder."
51 The language quoted by the Court in this passage is taken from s 1(2) of the Superannuation Act. The reference to incapacity is in turn a reference to s 33 of the Workers Compensation Act, under which the entitlement in question arose in that case. The passage does not, however, assist the Commissioner in the present context. First, the provisions in question in Calman did not involve any bifurcation of functions between the STC and the Commissioner. Accordingly, any comments about the issues to be determined by the Commissioner or the Tribunal in that context were not directed to any such division of duties. Secondly, the operative provisions of the Workers Compensation Act may, as in the cases of ss 33 and 66, distinguish between the injury and the incapacity or impairment which results from it. In its ordinary meaning, s 12D(4)(a), requires the Commissioner to determine whether the injury arose out of the officer's work, treated as employment for the purposes of compensation. It does not in terms refer to the consequences of the injury and thus does not require the Commissioner to determine whether the injury resulted in incapacity or impairment, or neither.
52 There is a further reason to be derived from the structure of s 12D which supports this conclusion. Thus, as already noted, the STC may only grant a gratuity if one of two conditions set out in sub-s (3) is satisfied, the conditions being:
"(a) an annual superannuation allowance is payable to the member or former member under section 10, or