Commissioner of Police v SAS Trustee Corporation

APPELLANT Mr R J Perrignon of counsel Solicitor: Mr M N Holmes Court & Legal Services, NSW Police Service

RESPONDENT Mr T Ower of counsel LEGAL REPRESENTATIVES: Solicitor: Mr B Matthews SAS Trustee Corporation

INTERVENER Mr M J Walsh of counsel Solicitor: Mrs K H Smith Oates & Smith

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Matter No IRC 6858 of 2001 COMMISSIONER OF POLICE v SAS TRUSTEE CORPORATION Appeal against the decision of the SAS Trustee Corporation given on 6 April 2001 JUDGMENT (Extempore) [2002] NSWIRComm 31

1 The proceedings before the Court today concern a Notice of Motion filed by Ms Karyn Gitsham, a former police officer, in which she challenges the bringing of the proceedings by the present appellant, the Commissioner of Police, against a decision of the respondent, the SAS Trustee Corporation. For convenience the Commissioner of Police shall be referred to as the appellant, the SAS Trustee Corporation as the respondent and Ms Gitsham as the applicant. 2 The notice of appeal was filed 19 October 2001 and purported to appeal against the decision of the respondent given on 6 April 2001. The appeal was brought pursuant to s 88 of the Superannuation Administration Act 1996 which provides: 88 Appeals

(1) A person aggrieved by a determination of STC under section 67 (relating to determination of disputes) may appeal against the determination to the Industrial Relations Commission in Court Session (the Commission).

(2) The appeal must be made within 6 months after the appellant is notified of the determination of STC or within such further period as the Commission allows.

(3) In dealing with the appeal, the Commission may exercise any function that could have been exercised by STC in making the determination the subject of the appeal.

(4) In dealing with the appeal, the Commission is to have regard to this Act and any other relevant provisions regulating the superannuation scheme concerned and such other matters as it considers to be relevant.

(5) In dealing with the appeal, the Commission is not bound by the rules of evidence and may inform itself in any manner it thinks fit.

(6) The final determination made by the Commission on the appeal is to be given effect to as if it were a determination of STC. 3 The notice of appeal was filed 19 October 2001. The appellant referred to the decision appealed from in this way: I am appealing against that part of the determination which defines the specified infirmity as "generalised anxiety disorder, panic disorder with agoraphobia, post traumatic stress disorder and chronic pain disorder." 4 The basis for the appeal and the orders sought were respectively as follows: The reasons why I am appealing are:

(i) That I consider the specified infirmity should have been determined as "abnormal illness behaviour".

(i) The certificate of incapacity amended by the Respondent on 6 April 2001 be further amended by changing the specified infirmity to "abnormal illness behaviour".

(ii) Such other orders as the Commission in Court Session seems fit. 5 The determination of the respondent, the subject of appeal, is to be found in an attachment to the notice of appeal. The attachment was a copy of a letter from the respondent addressed to an officer described as the "Medical Discharge Coordinator [of the] NSW Police Service". It set out, under the heading "Summary of Decisions made at the STC Dispute Committee's meeting of 6 April 2001 in relation to applications for medical discharge", three separately headed paragraphs. Two paragraphs in respect of other police officers or former police officers were crossed out, leaving the following entry in relation to the applicant: Re: Karyn GITSHAM, Reg'd No. 23709

The STC's Disputes Committee amended the certificate of incapacity previously issued by changing the specified infirmity to "generalised anxiety disorder, panic disorder with agoraphobia, post traumatic stress disorder and chronic pain disorder". Please arrange for the Commissioner to issue a certificate in terms of section 10B(3)(a) of the Act in respect of the above mentioned matters. 6 When the matter was listed for directions before me on 20 November 2001, as well as appearances for the appellant and the respondent, counsel appeared for the applicant seeking at that stage leave to intervene but foreshadowing that a Notice of Motion would be filed seeking not only intervention on behalf of the applicant but also orders that she be made a party to the proceedings and that the proceedings be struck out as not appropriately before the Court. 7 The Notice of Motion was consequently filed on 7 December 2001 and when the proceedings came back before the Court on 13 December 2001, directions were given to prepare the matter for hearing as to the issues raised in the Notice of Motion and the hearing was fixed for today. 8 The orders sought in the Notice of Motion are as follows: 1. An order that the Applicant be joined as a Second Respondent to the Superannuation Appeal, the IRC 6858 of 2001.

An order that the proceedings IRC 6858 of 2001 be struck out as incompetent. 9 The grounds and reasons in the Notice of Motion were set out in summary form in written submissions before the Court and accordingly are not repeated here. It is sufficient to note that they deny that the appellant was a party to the dispute which is the relevant vehicle for determination of certain matters under the Superannuation Administration Act and that the appellant "has not shown that his legal right or interest is affected by the Determination other than an obligation to perform a statutory duty". Thus he is said not to be a "person aggrieved" within the meaning of s 88 of the Superannuation Administration Act and therefore does not have standing to prosecute the appeal lodged. 10 In proceedings before the Court today the applicant was represented by Mr M J Walsh of counsel, the appellant by Mr R J Perrignon of counsel and the respondent by Mr T M Ower of counsel. The Court is indebted to counsel for their most helpful submissions. 11 It is convenient at this point to refer to the statutory scheme relevant to the present matter before proceeding to the detail of the evidence relevant to the Notice of Motion. The statutory scheme is to be found essentially in two statutes and to a lesser extent also in the Industrial Relations Act 1996. In addition to the Superannuation Administration Act the other major statute embodying the scheme is the Police Regulation (Superannuation) Act 1906, which shall be referred to as the Superannuation Act. That statute constitutes a superannuation scheme which, although not relevant to the present proceedings, may be noted was closed on 1 April 1988. 12 The fund relevant to the scheme is defined in the Superannuation Act in s 1: Fund means the Police Superannuation Fund established by this Act.

Another relevant definition is "hurt on duty" which is defined in the same section in this way: ... in relation to a member of the police force, means 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. A further important definition is that of the "STC" which is defined to mean the SAS Trustee Corporation continued under the Superannuation Administration Act .

13 Section 2H of the statute constitutes the Police Superannuation Advisory Committee which is comprised of nominees of, for example, the Police Association of New South Wales, the STC, the WorkCover Authority and the Minister for Police. Section 3 constitutes the Police Superannuation Fund and provides that the Fund is, subject to the Act, under the control of the STC and that it consists of various amounts including those obtained from a fund now closed (known as the Police Superannuation and Reward Fund), certain deductions made from the salaries of serving police officers and amounts appropriated from the Consolidated Revenue Fund under Section 4. The STC, by the terms of s 3(3), is required to pay from the Fund the benefits provided by the Act, administration costs, other moneys properly payable from the Fund and such amounts necessary to satisfy liability under Commonwealth statutes relevant to income taxation and superannuation contributions surcharge.

14 Section 4 which as noted earlier is referred to in s 3(2)(c), provides that deficiencies in the Police Superannuation Fund is a charge against the Consolidated Revenue Fund. It was common ground that, as a matter of practice, apparently because of the views taken by the relevant authorities of the effect of s 4, that significant payments from the funds of the Police Service (in the order of two per cent of the total salary bill) are made on a regular basis directly from consolidated revenue. Presumably this occurs for reasons of convenience and pursuant to arrangements with Treasury. Suffice it to say that this is a not insignificant proportion of the salaries bill applicable to serving police officers which is directly paid to the Fund and this relates to moneys which would otherwise be paid to the Police Service for the efficient discharge of the service for which the Commissioner of Police has responsibility. 15 Unsurprisingly, and as envisaged by s 3, various benefits are available to certain categories of retired and former police officers. The benefit pertinent to the present proceedings is the superannuation allowance payable when members are determined to be hurt on duty under s 10. That section provides for various levels of benefit to "hurt on duty" officers or former officers. However, its precise terms, which are lengthy and complex, do not need to be set out. Particularly relevant, however, are the terms of s 10B of the Act entitled "Medical examination of disabled member and determination of whether hurt on duty". Section 10B relevantly provides: (1) An annual superannuation allowance shall not be granted under section 10 to a member of the police force who is discharged unless STC (having regard to medical advice on the condition and fitness for employment of the member) has certified the member to be incapable, from a specified infirmity of body or mind, or discharging the duties of the member's office.

medical advice means the advice of: (a) 2 members of the Police Medical Board, or

(b) any one or more medical practitioners nominated by the STC.

(3) Where a member or former member of the police force is duly certified under subsection (1) or (2), the Commissioner of Police shall: (a) decide whether or not the infirmity to which the certificate relates was caused by the member being hurt on duty or the former member having been hurt on duty when he or she was a member of the police force, as the case may be, and the date or dates on which the member or former member was hurt on duty, and

(b) give the member or former member written notification of the decision. 16 The Police Medical Board referred to in s 10B(2C)(a) is the Police Medical Board established under s 15A of the statute which provides that the "Police Medical Board shall consist of such medical practitioners as are from time to time appointed by the Governor".

17 It may be appropriate briefly to reflect upon the statutory scheme to this point. The scheme precludes a hurt on duty superannuation allowance available under s 10 being paid to a police officer in the categories specified in s 10B(1) unless the STC, "having regard to medical advice on the condition and fitness for employment" of the police officer, has issued the relevant certificate or certification in the terms explained by the subsection. "Medical advice" is as defined in sub-section (2C), that is, the advice of either two members of the Police Medical Board or any one or more medical practitioners nominated by the STC. When and if such a certificate is issued the Commissioner of Police is required to make a decision under s 10B(3)(a) and provide written notification to the police officer or former police officer of the decision. The matter sought to be challenged by the appellant in the notice of appeal filed is clearly related to the certification process and the certificate thus issued in terms of the requirements, so understood, of s (10B)(1).

18 The last provision of the Superannuation Act which is to be considered is s 21 which deals with determinations by the Compensation Court. That section relevantly provides: (1) A person who considers himself or herself aggrieved by: (a) a decision made by STC on a matter that arises under this Act by reason of a member of the police force being hurt on duty, or

(b) a decision made by the Commissioner of Police under section 10B(3)(a), 12C(1), 12C(2) or 12D(4)(a), may, within the period of 6 months after the person is notified of that decision, apply to the Compensation Court for a determination in relation to that decision.

(2) Notification of a decision under subsection (1) is to be given in writing.

(3) STC or the Commissioner of Police, as the case may be, is entitled to be represented at the hearing of an application under this section.

(4) The Compensation Court, after considering an application under this section, may make a determination that the decision of STC or the Commissioner of Police, as the case may be, in respect of which the application was made: (a) be confirmed, or

(b) be set aside and replaced by a different decision made by the Compensation Court.

(5) The Compensation Court shall not make a decision referred to in subsection (4)(b) unless STC or the Commissioner of Police, as the case may be, could pursuant to this Act make that decision.

(6) Where the Compensation Court makes a decision referred to in subsection (4)(b), that decision shall, for the purposes of this Act, be deemed to be made by STC or the Commissioner of Police, as the case may be, and shall be carried into effect.

19 Returning then to the part of the overall statutory scheme found in the Superannuation Administration Act, that statute may be considered as a piece of over-arching legislation which enables, at least in broad terms, a uniform approach to be taken as to superannuation provided by a number of different governmental superannuation funds. The nine funds dealt by the legislation are set out in one of the definitions in s 4 and the first listed is the fund presently being considered.

20 Section 67 of the Superannuation Administration Act enables disputes concerning, inter alia, the Police Superannuation Fund and the related superannuation scheme to be dealt with by the STC and the provisions which are relevant to that process appear to be that section, s 66 and s 68 which provide as follows: 66 STC may compromise or settle claims

(1) STC may compromise or otherwise settle any claim made against it.

(2) If STC compromises or otherwise settles a claim in relation to a benefit, the compromise or settlement discharges STC's obligations as regards the benefit, and the amount payable is to be regarded as a benefit under the STC scheme concerned and is payable from the appropriate STC fund accordingly.

(3) To the extent that an amount payable by STC following a compromise or settlement is not a benefit under the relevant STC scheme, the amount if payable from whichever fund or funds that STC considers appropriate.

(4) STC may make such inquiries and investigations with respect to a claim made against it as it thinks fit.

(1) A dispute under this or any other Act concerning an STC scheme is to be determined by STC, except as otherwise provided by the regulations.

(2) Regulations made for the purposes of subsection (1) may require that a dispute concerning the entitlements or obligations of an employee or beneficiary arising in respect of service by the employee with an employer that: (a) was responsible for the payment of benefits under an STC scheme of which the employee was a member or to which the employee was a contributor, and

(b) has ceased to be responsible for the payment of benefits under that scheme but is responsible for the payment of benefits under a new superannuation scheme created in accordance with section 127,

be determined, not by STC, but by the trustee of the new superannuation scheme.

(3) In determining a dispute, STC or the relevant trustee may inform itself on any matter in such manner as it thinks fit and, in so doing, is not bound to observe rules of law relating to evidence.

(4) A trustee acting in accordance with regulations referred to in subsection (2) has and may exercise the powers conferred on STC by sections 66 and 68.

(1) STC may request a person who has made a claim against STC, or who has a dispute with STC, to provide STC with an authority to obtain from a third person any information or evidence that is relevant to the subject-matter of the claim or dispute.

(2) If such a person does not comply with any such request, STC is not obliged to proceed to process the claim or determine the dispute concerned." 21 The last part of the statutory scheme is s 153(1)(h) of the Industrial Relations Act which provides that "proceedings on a superannuation appeal under sections 40 or 88 of the Superannuation Administration Act 1996" are to be exercised only by the Commission in Court Session 22 The parties had helpfully agreed on a series of agreed facts and also a chronology to facilitate hearing of the matter. The statement of agreed facts is in these terms: 1. The Police Service of NSW ('the Police Service') was established by the Police Service Act 1990 which commenced on 1 July 1990.

2. The highest ranking Officer in the Police Service is the Commissioner (s.12). All Police Officers including the Commissioner are required to take an oath or make an affirmation of office as a police officer, such oath being owed to the Police Service.

The Commissioner of Police is a member of the Police Service and as such, subject to the missions and functions of the Police Service of NSW (s.5, s.6).

The Commissioner of Police is appointed by the Governor on the recommendation of the Minister (s.24). The appointment is to the office of Commissioner may be temporarily filled by an Acting Commissioner.

The occupant of the office of Commissioner is subject, to the direction of the Minister, responsible for the management and control of the Police Service and other duties prescribed by s.8; including issuing instructions to members of the Police Service with respect to management and control of the Police Service.

Pursuant to Division 7 of the Police Service Act the Commissioner is responsible for determining industrial matters including salary, wages and the entry into agreements with respect to industrial matters. However pursuant to s.86 the Commissioner is proscribed by the operation of s.405 of he Industrial Relations Act, 1996.

Miss Gitsham is a former member of the Police Service with entitlements pursuant to the Police Regulation (Superannuation) Act, 1906.

Miss Gitsham and the SAS Trustee Corporation were parties to a dispute which resulted in the determination of 6 April 2001.

Neither Miss Gitsham, nor the SAS Trustee Corporation, is 'a person aggrieved by' that determination within the meaning of s.88 of the Superannuation Administration Act, 1996.

Such medical reports as relied upon by the Commissioner of Police in these proceedings were before the SAS Trustee Corporation at the time it made its determination of 6 April 2001.

The original specified infirmity of 'abnormal illness behaviour' is not an accepted diagnostic term in the sense of manuals categorizing recognized mental disorder such as DSM IV. The term 'abnormal illness behaviour' does not have acceptance among expert reporters including psychiatrists other than being descriptive of behavioural outcomes and cannot be said to be a primary diagnosis. The above facts are agreed save for paragraph 11 in respect of which the appellant reserves his position but that reservation is not considered material to the decision to be made.

23 Further, during the course of the proceedings today the parties appropriately agreed on a number of other matters subject only to the applicant reserving her position as to the relevance of such matters. The additional agreed facts were as follows: 1. On a date prior to 18 December 1998, STC or its delegate determined (the 'First Determination') pursuant to section 10B of the Police Regulation (Superannuation) Act 1906 ('PRSA') that it would not certify Ms Gitsham as being incapable of carrying out her duties of office due to infirmity.

2. On a date not known to the Commissioner, pursuant to section 67 of the Superannuation Administration Act 1996, Ms. Gitsham notified STC of a dispute concerning the First Determination.

3. On 18 December 1998, STC's Disputes Committee reviewed the First Determination, and determined that Ms. Gitsham was incapable of carrying out her duties of office due to the infirmity of Abnormal Illness Behaviour (the 'Second Determination').

24 Notwithstanding some overlap with the above matters it is also convenient to set out the following additional aspects of the agreed chronology: 6/4/2001 STC Disputes Committee makes a determination in regard to a dispute between STC and Karyn Gitsham pursuant to s.67 Superannuation Administration Act that the specified infirmity within the meaning of s.10B(1) is to be amended and replaced by the specified infirmity of 'Generalised Anxiety Disorder, Panic Disorder with Agoraphobia, Post Traumatic Stress Disorder and Chronic Pain Disorder'.

9/4/2001 STC letter of Oates & Smith confirming that the previous specified infirmity of incapacity had been revoked and replaced by a determination 'Generalised Anxiety Disorder, Panic Disorder with Agoraphobia, Post Traumatic Stress Disorder and Chronic Pain Disorder'.

11/4/2001 STC requests the Commissioner of Police to issue a certificate in terms of s.10B(3)(a) Police Regulation (Superannuation) Act in regard to the specified infirmity being either Hurt on Duty or not Hurt on Duty within the meaning of s.10B(3)(a).

11/4/2001 STC letter to Oates & Smith confirming that the NSW Police Service had been informed of the Committee's decision stating 'The New South Wales Police Service has been informed of the Committee's decision and we await receipt of their classification of the amended specified infirmity'.

18/5/2001 Oates & Smith writes to the Commissioner of Police enquiring as to the progress of its finding as to Hurt on Duty.

14/6/2001 Oates & Smith writes to the Commissioner of Police enquiring as to the progress of its finding as to Hurt on Duty.

6/8/2001 Oates & Smith writes to the Commissioner of Police enquiring as to the progress of its finding as to Hurt on Duty.

19/10/2001 Commissioner of Police commences proceedings in IRC No 6858 of 2001.

25 The applicant also relied upon the affidavit of her solicitor Ms Kim Howard Smith sworn 7 December 2001. A number of documents are annexed to that affidavit. The substance of the majority of those documents is set out in items referred to earlier, as are other matters in the body of the affidavit. It is relevant, however, to specifically refer to one of the annexures, which is the letter from the respondent to the applicant's solicitor of 11 April 2001, which included the following: We refer to the STC's Disputes Committee decision of 6 April 2001, wherein it amended the above named member's specified infirmity to "generalised anxiety disorder, panic disorder with agoraphobia, post traumatic stress disorder and chronic pain disorder".

The NSW Police Service has been informed of the Committee's decision and we await receipt of their classification of the amended specified infirmity.

26 The only other aspects of Ms Smith's affidavit which require reference are these. First, she deposed the applicant alleges her psychiatric infirmities were suffered consequent to her employment in the New South Wales Police Service; second, that there is reference to the history of the dispute and what took place in relation to it; third, it is alleged that the applicant has significant legal rights which may be affected adversely by a change in the nature of the infirmities as claimed in the notice of appeal lodged by the appellant; fourth, that it is in the interests of justice that the applicant be joined to protect her rights and interests in relation to the determination made by the STC; lastly, that the Commissioner of Police is not a party to the dispute and his standing to bring the appeal is put directly in issue on the basis that "the Commissioner of Police is not a person aggrieved within the meaning of section 88 of the Superannuation Administration Act", and he does not otherwise have standing to bring the current proceedings. Thursday, 21 February 2002

27 Yesterday I was dealing with the statutory scheme and, perhaps to complete that aspect, reference should be made to two judgments which bear upon it. The first is the judgment of the Court of Appeal in Saad v Commissioner of Police (1995) 10 NSWCCR 70 and the second, the judgment of Carruthers J of 19 October 1994 in Barnes v Commissioner of Police (unreported, Supreme Court ALD No 030089/93). 28 It is sufficient to note that, relevantly, in Saad v Commissioner of Police it was held that in proceedings to which the Commissioner of Police was a party pursuant to s 21 of the Superannuation Act , the Compensation Court was bound to accept the certificate which had been issued by the STC under s 10B of that statute. 29 The judgment of Carruthers J in the second case, Barnes v Commissioner of Police , stands for a number of relevant propositions. There is some difficulty in precisely identifying them as there have been some legislative changes. However, by incorporating as best as might be done, the legislative changes which have occurred between the date of that judgment and the present form of the legislation, the judgment appears to stand for two related propositions: first, that it is open to the STC to amend a s 10B(1) certificate; and second, if that certificate is amended after review by the STC, then the Commissioner of Police is required to make a fresh determination or decision under s 10B(3). 30 No party sought to argue that either judgment was incorrect. I consider, with respect, that the approach adopted uniformly by the parties as to those judgments is correct. I therefore act on the basis that those judgments are correct and that the relevant parts of the statutory scheme are to be considered accordingly. 31 The key issue for determination in this matter is whether the Commissioner of Police is a "person aggrieved" by the relevant determination of the STC of 6 April 2001 within the terms of s 88 of the Superannuation Administration Act . There is also the subsidiary question whether the Commissioner is a juristic person for purposes relevant to the determination of the first question. 32 As discussed with counsel during the course of argument, I have reached the view that it is not, strictly speaking, necessary to determine the subsidiary or second issue in these proceedings because it is not an issue which affects the jurisdiction of the Court or, indeed, the standing of the appellant or another entity which could reasonably stand in his place. Rather, it was a procedural matter which could conveniently be dealt with, if necessary, pursuant to the terms of s 170(1) of the Industrial Relations Act 1996 which is to be read with subs (2). Those subsections are in the following terms: 170 (1) The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice. (2) Any such amendment may be made: (a) at any stage of the proceedings, and (b) on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs).

I have considered these provisions in other proceedings and I will return to them in due course. 33 I consider that it is also relevant to have regard to s 63 of the Supreme Court Act 1970 which is in the following terms: The Court shall grant, either absolutely or on terms, all such remedies as any party may appear to be entitled to in respect of any legal or equitable claim brought forward in the proceedings so that, as far as possible, all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided. 34 Although it is true that that provision is not part of the statutory framework under which this Court operates it is, nevertheless, useful as expressing contemporary approaches to procedural questions and has been a guiding principle for such questions since the Judicature Acts of the 1870s which, of course, came into full force in this State in the early 1970s. It illustrates the importance subject, of course, to questions of prejudice and fairness between the parties, of ensuring, where at all possible, that procedural questions are approached in a way so as to ensure justice between the parties rather than to frustrate its achievement. It also illustrates that, again subject to the Court considering the justice in the circumstances of this case in granting such procedural relief or amendment as would be appropriate to ensure a just outcome, that the approach which should be taken should be one, if at all possible, consistent with the most economical situation as to costs so far as the parties are concerned. 35 The philosophy or intent of s 170 is, in my view, not materially different to that embodied in s 63 and, as I observed as to s 170 in Hyde v Energy Australia (1999) 92 IR 409 at 423: A useful contemporary example of relevant judicial approaches is provided by the judgment of Kirby J of the High Court in Thorpe v Commonwealth (No 3) (1997) 144 ALR 677 at 686 - 687, where his Honour said: "Even if a party makes good its attack on another's pleading, a court will ordinarily permit the opponent to reframe the pleading so long as it is clear that there is point in doing so and that the further time and opportunity will have utility: see Lindon v Commonwealth (No 2) (1996) 136 ALR 251 at 256: 70 ALJR 541 at 545. The guiding principle is doing what is just. Courts, particularly today, strive to uphold efficiency and economy in the disposal of proceedings before them: see Queensland v JL Holdings Pty Ltd (1997) 141 ALR 353; 71 ALJR 294 at 297, 304 - 305. But they also remember that pleadings are a means to the end of justice according to law. Pleadings are the servants, not the masters of the judicial process."

This approach is consistent with the essentially pragmatic approach in procedural matters adopted by this Court and its predecessors. See, for example, the approach of Hungerford J (albeit in a different procedural context) in Fernance v Wreckair Pty Ltd (1991) 22 NSWLR 439 at 458 and also by the Industrial Commission in Court Session ( Hill , Maidment and Hungerford JJ) in Production Panel Beating & Spray Painting Pty Ltd v Newnham (1990) 33 IR 311 at 315, 328, a case which is cited with approval and relied upon by Hungerford J in Fernance. 36 If I held, consistent with the arguments of the applicant, that the Commissioner was not a juristic person or, if this be the relevant approach, whatever legal personality was available to the Commissioner, it was not such as to give him standing under s 88, but I also considered that it was not the Commissioner, but rather the State of New South Wales (for example, pursuant to the Crown Proceedings Act 1988), which did have the requisite "standing", the dismissal of the proceedings on that basis (if otherwise the requirements of s 88 of the Superannuation Administration Act were satisfied) would not be in the interests of any party, including the applicant, and an appropriate amendment should be granted to enable (if it be the correct legal party) the State of New South Wales to be joined as either a co-appellant or a substituted appellant. For these reasons I have not considered the question in detail, notwithstanding the most helpful submissions put on that question. I have not reached a final view on the submissions put, however, my preliminary view on the matter is that … [Mr Perrignon informed his Honour that the Court had not heard argument from him on that matter and requested that unless it was necessary for the decision he asked his Honour not to express any view. Discussion ensued.] 37 My preliminary view is that the Commissioner of Police has sufficient standing. Whether that be described simply as him having juristic personality or whether some other description is more appropriate does not presently matter in light of the other conclusions herein. I, however, make clear that I am not in any way determining that question. 38 I then turn more particularly to the question under s 88. As earlier indicated, the question here relates to a phrase well-known in the law as to "person aggrieved", a phrase which has been the subject of much consideration both in decided cases and in learned texts. See, for example, the discussion in Aronson and Dyer Judicial Review of Administrative Acts , 2nd Edition, 2000, in Chapter 12 entitled Standing to Sue . See, by way of example, the following discussion, in Chapter 12, commencing at p 545 with the following text: Many Acts have their own standing rules. Some, indeed, have abolished the standing requirement. Other Acts have restrictive standing rules. Most of these rules apply to appeal contexts, or to participation rights in administrative processes. Other statutes have been content to use one of the more common formulas, such as a person who 'feels aggrieved', or is a 'person interested' or 'affected', a 'taxpayer who is dissatisfied', or a 'person aggrieved'. We will not examine the fine detail of the case law on any of these provisions because they add so little to the general law. They often assert that the specific statutory test differs from the general law test, but that is not often demonstrated in practice.

Some judgments go against the current and caution against concentrating too closely on general formulas such as interests affected or persons aggrieved, because no matter what formula is used, a lot depends on the particular regulatory context under consideration. Gummow J reviewed the various statutory and common law tests in Australian Institute of Marine and Power Engineers v Secretary, Department of Transport. ((1986) 71 ALR 73, particularly at 81) 39 Gummow J, in the case last referred to in that extract, Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 71 ALR 73 , considered that phrase as it appeared in the Administrative Decisions (Judicial Review) Act 1977 (Cth). His Honour held: The result is that there is a measure of broad agreement as to Locus standi both for legal and equitable remedies in public law and in that situation it would be a strange result if the ADJR Act posited, by use of the concept of grievance, some narrower criterion. It also has to be borne in mind the ADJR Act is ambulatory in its operation and draws within its scope a diverse and extensive collection of decision making processes, truly an unclosed class. Too rigid a criterion of locus standi will threaten to stultify the utility of the procedures the ADJR Act offers. Hence the force of the observations (frequently adopted in this court) by Ellicott J in Toohey's case (1981) 54 FLR 421 at 437 - 438; 36 ALR 64 to the effect that the meaning of "a person aggrieved" is not encased in any technical rules and that depends upon the nature of the particular decision and the extent to which the interest of the applicant rises above that of an ordinary member of the public. 40 I agree, with respect, with the importance his Honour placed on phrases such as "a person aggrieved" not being construed on the basis of any technical rules but rather by reference to the nature of the particular decision under consideration and the extent to which the interest of the applicant may be said to rise above that of an ordinary member of the public. In saying this, his Honour, of course, emphasised the importance of the particular statutory context in determining the relevant issue. I am, however, prepared to accept that the phrase may be considered as one which is to be construed broadly and that although, in strict terms, it may be said to be a phrase with somewhat narrower scope than the cognate phrase "a person interested", the making of a fine distinction on that basis may infringe his Honour's admonition against too ready resort to technical rules. Accordingly, the starting point of my consideration of the statutory scheme is that the phrase "a person aggrieved" should not be readily construed narrowly. 41 Recently, the High Court in Allan v Transurban City Link (2001) 75 ALJR 1551 at 1555 in paragraph [15] and [16] had occasion to consider a "standing" provision in a particular Commonwealth statute, the Development Allowance Authority Act 1992. The phrase considered in that case was "affected by". The majority of the Court ( Gleeson CJ, Gaudron , Gummow , Hayne and Callinan JJ) said: [15] The expression "affected by" and cognate terms appear in a range of laws of the Commonwealth. This is not the occasion for a disquisition of that topic. It is necessary to answer the questions posed above in respect of s 119(1) of the Authority Act by reference to the subject, scope and purpose of that statute, rather than by the application of concepts derived from decisions under the general law respecting what has come to be known as "standing". "Standing" is a metaphor to describe the interest required, apart from a cause of action as understood at common law, to obtain various common law, equitable and constitutional remedies.

[16] In Re McHattan and Collector of Customs (New South Wales) (1977) 1 ALD 67 at 70 Brennan J stated that "[a] cross the pool of sundry interest, the ripples of affection may widely extend". However, as Davies J pointed out in Alphapharm Pty Ltd v SmithKline Beecham (Australia) Pty Ltd (1994) 49 FCR 250 at 259, Brennan J "did not propose that any ripple of affection would be sufficient to support an interest". A particular statute may establish a regime which specifically provides for its own measure of judicial review on the application of persons meeting criteria specified in that statute. The present case involves such a statute. The starting point, as indicated by several authorities in the Full Court of the Federal Court, is the construction of the Authority Act with regard to its subject, scope and purpose." (footnotes omitted) 42 In addition to the matters referred to by the High Court, it is also relevant in a case as complex as the present to have particular regard to the mandate of the legislature as to purposive construction to be found in s 33 of the Interpretation Act 1987 where courts are required to prefer a construction which would promote the purpose or object underlying the statute (whether that purpose or object is expressly set out in the statute) to a construction which would not promote the purpose or object. See, for example, the judgment of McHugh J in Saraswati v The Queen (1991) 172 CLR 1 at 21 and also the reference in Commonwealth Bank v Hadfield [2001] NSWCA 440 at [57], to another judgment of McHugh J, Malakai Holdings v Stretton (2001) 178 ALR 218 at 225. 43 True it is in this case that the purpose or object of the complicated scheme itself presents some difficulties. As the appellant noted at p 9 of his submissions of 10 December, Cullen J observed in the unreported judgment of 3 November 1993 in Quinn v State Authorities Superannuation Board : The right to such a pension is a valuable and expensive right and should not be granted unless the statutory requirements are met. 44 However, the important cautionary observation of Cullen J does not necessarily mean that once the requirements are met there should be any greater burden imposed upon a person to establish the entitlement or there should be implied in the legislation an extraordinary means of challenge to a person's entitlement. 45 I consider that the purpose or object of the legislation, or at least so far as is relevant to the present proceedings, is to provide valuable benefits to police officers and former police officers in relation to retirement arising from "hurt on duty" situations but to do so in a measured and careful way which allots certain responsibilities for the rather complex process involved, which are, and are to be seen to be, commensurate with the important rights and responsibilities granted to the STC and to the Commissioner of Police. 46 It may be that the rather complex scheme attempts to achieve a balance, on the one hand, between the valuable rights and the need, on the other hand, for caution in too readily extending those rights if that might result in inappropriate receipt of the allowance. There seems also to be an attempt to balance the recognition of the valuable role of police officers for their service in the public interest (with the consequent entitlement for officers subject to an adverse decision to have certain rights of appeal), with corresponding rights of appeal by the relevant authorities in the case of a decision in favour of police officers. However, it would be expected that any mechanism for appeal would reflect the allocation of responsibilities earlier referred to and not be so great as to become burdensome to the officers concerned or involve a level of complexity beyond that which could be seen to be reasonable to protect the interests or roles allocated by the legislation. 47 It may be that the complexity of the legislation also shows some elements of compromise between those representations which led to the legislation and which may have advanced claims for such benefits and those representations which were concerned to protect the public interest and the revenue. In that context it is to be observed that there are certain public authorities which, in the allocation of roles earlier referred to, are given a particular responsibility and the legislature appears to have assumed that the authority given the responsibility is the one in the best position to bring about a result which was most likely to be the correct and fair one. 48 The corollary of that consideration is that there is a division of function in the legislative scheme as between the appellant Commissioner of Police and the respondent STC. It is not, however, to be overlooked that part of the way in which the STC is to discharge its responsibilities involves the Police Medical Board constituted under s 15A which permits the STC, in the discharge of certain of its responsibilities, to have available to it the specialist advice of that Board, although it is not mandatory for the STC to avail itself of that advice. See, in that respect, the terms of s 10B(1) when read with the definition of "medical advice" in s 10B(2C). 49 Before I seek to apply that perhaps rather cumbersome attempt to identify the purpose and object of the legislation so far as is relevant, I should advert briefly to some submissions made which drew attention to the fact that the history of the matters as earlier referred to shows an earlier certification by the STC under s 10B(1); the applicant had challenged the subsequent determination by the appellant under s 10B(3) in the Compensation Court, presumably pursuant to s 21(1)(b) of the Superannuation Act and that it was subsequent to the commencement of those proceedings that the applicant sought the amendment of the certification under s 10B(1) which led, in turn, to the certification which is the subject of the present notice of appeal. 50 It was correspondingly submitted in the light of those circumstances, by both the appellant and the applicant, that the other side was seeking some forensic advantage from, in one case, an application to amend the s 10B(1) certificate and, in the other, from an attempt to appeal the STC's amended certificate under s 88 by an appeal to this Court. I do not consider that those matters properly considered bear upon the difficult task of statutory construction which will determine this matter. Those matters do, of course, tend to indicate that if, in these proceedings, it is held that the appellant Commissioner does have a right of appeal because he is a "person aggrieved", that adds a further level of complexity to the already rather complex processes under the Act. It is well established that it is appropriate in testing competing contentions as to interpretation of legislation to have regard to the consequences of each interpretation. See for example, Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 302 - 305 and 321, and Drake Personnel Ltd (t/as Drake Industrial) v Workcover Authority of New South Wales (1999) 90 IR 432 at 444 - 446. 51 I have earlier indicated that one should commence with the assumption that the relevant words in s 88(1) are intended to be interpreted broadly. However, they are not to be considered as without limit or as extending beyond the language or purpose of the particular legislation which is subject to consideration. One of the reasons, no doubt, why the phrase chosen by the legislation is a wide one is that the Superannuation Administration Act is a piece of legislation arching across nine specialist examples of superannuation legislation which have different schemes and features, often reflecting the different histories of the legislation. Those statutes, without specifically referring to them, use different determinative words for similar matters; for example, for the purpose of entitlements. For example, the word "contributor" is relevant in some legislation as to entitlements and in others it is not. Certainly, as a matter of ordinary practice, legislation giving benefits on retirement or death may often refer to such entitlements being available to employees or contributors as one category; to former employees or former contributors as a second category; and beneficiaries or dependants as a third category (in the last example, where the benefits are available after the death of the contributor or former employee). 52 Those general considerations of themselves make clear why a general form of words was required and used. It may also mean that persons other than those receiving benefits may potentially be persons aggrieved for the purposes of the legislation. However, I do not consider that is the case in relation to s 88 so far as is relevant to the part of the Superannuation Act presently being considered here. Section 10B(1) has to be read in the context of other similar provisions such as s 10B(2) but the reading together of such provisions does not essentially change the situation which arises from consideration of the first subsection. It must, however, be also read with the terms of s 21 which I consider is a particularly important part of the context. 53 It has been common ground that "decisions" referred to in s 21(1)(a) are not decisions such as those made by the STC under s 10B(1) or s 10B(2) but rather include decisions such as to the level of benefit under s 10(1A) (and following provisions) and s 12D as those provisions are "matter(s) that arise ... by reason of a member of the Police Force being hurt on duty" in terms of s 21(1)(a) whereas the certification under s 10B(1) does not. 54 I consider that the concessions made by the respective parties as to that construction were correct as was the similar concession that the right of appearance in appeals provided by s 21(3) was limited in the case of the STC, to appeals under s 21(1)(a) and in the case of the Commissioner of Police, to appeals under s 21(1)(b). It was, however, made clear when that concession was made, that although there was no right for the other "party" to appear before the Compensation Court, it may seek and be granted leave to do so. That demarcation or division of function as disclosed by s 21 confirms the conclusion I have reached as to the demarcation or division of function under s 10B as between the STC and the Commissioner of Police in respect of this important question of "hurt on duty". There is clearly a significant public interest in decisions on this important matter being appropriately made and the legislature, as earlier adverted to, has made a decision as to which is the more appropriate body or person to deal with the particular aspects of it. The particular aspects which might be considered by the Compensation Court are relatively precisely set out in s 21(1). The situation as between s 10B and s 88 is more difficult but I do not consider the legislature would have intended a different approach in principle, nor would it have intended that this division of function would be complicated by the decision-making body in one respect having, in respect of a function distributed or demarked to the other body, a further or additional role in respect of that matter, not as a decision-making body, but as a litigant or appellant. As said earlier, that would lead to even greater complication to an already complicated process. 55 Applying that approach and principle to s 10B I consider the appropriate construction is that the legislature has determined the function of making the decision in the public interest and that in the interest of the fund under s 10B(1) or, for that matter, under s 10B(2) is that of the STC and also the function of issuing the relevant certificate. As earlier indicated, in doing so the STC is obliged to have regard to medical advice which, depending on its consideration of the matter and, no doubt the availability of the members of the Police Medical Board, could be the advice of two members of that Board with the specialist skills and expertise which they would bring to the task. The certificate having been issued, it is then the role, not of the STC, but of the Commissioner of Police to make the decision as to whether the infirmity, the subject of the certificate, was caused by the police officer or former police officer being hurt on duty, and also to make a subsidiary determination such as to the date or dates when that occurred, if relevant. 56 The terms and structure of s 10B make clear the different roles of the STC and the Commissioner of Police. There is no reason to consider, having so distinguished those roles, that the legislature intended to blur them or to give one decision-making body a role in relation to the area which it has allocated to the other. The fact that a step such as that taken by the applicant here has caused, undoubtedly in good faith, the STC to amend its certificate under 10B(1), and which may make more difficult for the Commissioner of Police any contest before the Compensation Court that he is involved in, subsequent to a further decision made under s 10B(3) is, in my view, not to the point. Properly construing the legislation, the Commissioner has not only the primary responsibility but the responsibility as to whether a particular infirmity has been caused in a hurt on duty situation and in dealing with appeals to the Compensation Court in relation to that matter. However, the legislature has not allocated or given to the Commissioner the role or responsibility of dealing with the question of the certification, having regard to medical advice, in terms of the matters to be determined under s 10B(1). 57 That construction and approach to the legislation, in my view, renders a very complex scheme as rationally workable as might be possible having regard to its complexity. Although the legislation may not quite be described, as the High Court did of the scheme in the Superannuation Act 1916 , as labyrinthine, it is not far from that situation. However, once one reaches this conclusion - and even though one must, for the reasons earlier given, ascribe to the operative phrase in s 88 a wide meaning - it does not follow, having identified the role and function of the Commissioner in the scheme, that it can be truly said he is a "person aggrieved" by the subject decision. Rather, that is a matter in respect of which the legislation instructs the Commissioner and obliges him to deal with by making a further determination under s 10B(3). 58 It is for those reasons that I consider the Commissioner is not a person aggrieved and has no standing to bring the appeal. The parties should bring in short minutes of order to reflect this decision and to have the motion dealt with. __________________________________

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.