(1) that her late husband's death was caused by him being "hurt on duty";
(2) that she was his "spouse", and
(3) the authorization of the SAS Trustee Corporation ("the respondent") for a payment of an amount not exceeding the prescribed rate.
77 The Police Superannuation Act establishes a bifurcated decision-making process. The first matter noted above depends upon a decision by the Commissioner of Police: s 12C(1). On 21 April 2006 the Commissioner decided that Mr Day's death was caused by him having been hurt on duty. The Commissioner, as required by s 12C(1), notified the respondent of that decision. A decision that the deceased was "hurt on duty" meant that he was injured in circumstances which would, if he had been covered by the Workers Compensation Act 1987 (NSW), have entitled him to compensation under that Act: Police Superannuation Act, s 1(2), hurt on duty. A compensable injury under the Workers Compensation Act is an injury "arising out of or in the course of employment", to which the employment concerned was "a substantial contributing factor": Workers Compensation Act, ss 4 and 9A(1). A decision of the Commissioner was a decision that these elements were satisfied.
78 The second matter which the appellant needed to prove was not in dispute; she was the widow of the deceased and thus, in the temporally inapt language of s 12, was his "spouse" and eligible to receive a payment as such.
79 The third matter involved a decision of a different party, namely the respondent, to authorise payment to the appellant "of an annual superannuation allowance" of such amount as the respondent determined, not exceeding the prescribed rate: s 12(1). Because the first two matters were satisfied, the power to authorise payment was engaged. Although the language suggests a degree of discretion as to the amount of the payment, no issue arose in that respect, the respondent being content to authorise payment of the full amount at the prescribed rate.
80 In the case of death, the prescribed rate involved two elements. The first was an amount of 55% of the "attributed salary of office of the deceased": sub-par (i) of s 12(1AA)(a). The respondent authorised payment of that amount. The second limb authorised an increment of an additional 7.5% of the attributed salary, if the respondent were satisfied that "the member was hurt on duty because the member was required to be exposed to risks to which members of the general workforce would normally not be required to be exposed in the course of their employment": sub-par (ii). The respondent was not so satisfied and hence declined to authorise payment of the additional increment.
81 The appellant was a person aggrieved by this decision of the respondent and exercised her right to apply to the District Court for a determination in relation to that decision: Police Superannuation Act, s 21. In exercise of that jurisdiction, the District Court was required to make its own factual assessment of the nature of the risks and determine whether it was satisfied in accordance with par (ii). On 4 July 2008 O'Toole DCJ handed down judgment concluding that she was not so satisfied and confirming the decision of the respondent, pursuant to s 21(4)(a).
82 The jurisdiction being exercised by the District Court was that conferred on it by the Compensation Court Repeal Act 2002 (NSW) and is described as "residual jurisdiction": District Court Act 1973 (NSW), s 142G. Section 142N provides:
" 142N Appeal to Court of Appeal on question of law
(1) If a party to any proceedings before the Court in its residual jurisdiction is aggrieved by an award of the Court in point of law or on a question as to the admission or rejection of evidence, that party may appeal to the Court of Appeal.
…
(4) The following appeals under this section may be made only by leave of the Court of Appeal:
(a) an appeal from an interlocutory decision,
(b) an appeal from a decision as to costs only,
(c) an appeal from a final decision or award, other than an appeal that involves (directly or indirectly) a claim for, or a question relating to, an amount of $20,000 or more,
(d) an appeal from a decision or award made with the consent of the parties."
83 It was not in dispute that the appellant was a party to proceedings before the District Court and was aggrieved by the determination of that Court. The term "award" in s 142N(1) is defined to include "interim award, order, decision, determination, ruling and direction": s 142M(1). The range of decisions which can potentially be the subject of appeal may be inferred from the circumstances identified in s 142N(4) in which leave is required.
84 The notice of appeal filed for the appellant purported to invoke the jurisdiction of this Court under s 127 of the District Court Act, but was in error in that respect. The jurisdiction invoked was under s 142N. Also relevant to this Court's jurisdiction was s 142J which provides:
" 142J Decisions of Court when exercising residual jurisdiction
(1) The following apply in the exercise of the Court's residual jurisdiction:
(a) a decision of the Court in any matter is to be on the real merits and justice of the case,
(b) the Court is not bound to follow strict legal precedent,
(c) subject to Subdivision 3:
(i) a decision or proceeding of the Court is not vitiated by reason of any informality or want of form, and
(ii) a decision or proceeding of the Court is not liable to be appealed against, reviewed, quashed or called in question by any court, and
(iii) no proceedings, whether for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of any decision or proceeding of the Court relating to, or on the face of the proceedings appearing to relate to, any matter within its residual jurisdiction, and
(iv) the validity of any decision or proceeding of the Court cannot be challenged in any manner."
85 If it had been necessary for the appellant to invoke the judicial review jurisdiction of this Court under s 69 of the Supreme Court Act 1970 (NSW), it would have been necessary to determine whether that jurisdiction was constrained by the privative provisions of s 142J(1)(c). That in turn might have required consideration of whether the term "decision" extended to a decision which was invalid in the sense that it was beyond the jurisdiction of the Court: see Batterham v QSR Limited [2006] HCA 23; 225 CLR 237 at [25]-[26] (Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ).
86 In any event, s 142J(1)(c) is subject to Subdivision 3, in which is to be found s 142N. The latter provision must be given full effect in its terms, although the scope for identifying error may be limited by pars (a) and (b) of s 142J(1). On the other hand, the appellant must identify an award or decision of the District Court in point of law, as the subject matter of the appeal: Scicluna v NSW Land and Housing Corporation [2008] NSWCA 277; B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2009] NSWCA 55; Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138. To determine whether she succeeds in this respect it is necessary to consider the error relied upon.
87 The key passages in the judgment in the District Court are set out at [59] above. It is true that, in the District Court judgment at [62], her Honour expressed a conclusion as to the risks to which the deceased was exposed in terms which reflected that part of the respondent's decision which was before her for review. However, it is clear from the reasoning at [60] that the appellant had failed at an earlier stage, namely in failing to satisfy the District Court that the "archiving duties" in which the deceased was involved immediately prior to his admission to hospital and death were, in a relevant sense, a cause of his death. Her Honour noted that the deceased "may have contracted his illness outside the Crime Command's garage": at [60].
88 The effect of this finding was to reject the decision of the Commissioner that the deceased was hurt on duty and that the injury occurred as a result of the archiving duties. As noted by Giles JA at [35] above, the respondent (or more accurately its delegate) sought advice from the Commissioner as to the basis upon which he had made his decision under s 12C. The effect of the Commissioner's reply of 11 May 2006 was to note the engagement of the deceased on archiving duties in October 2003, to note that the appellant's claim was based upon the work being carried out in the archives and the acceptance of that claim by the Commissioner. In the course of the proceedings, the respondent objected to allegations in the pleadings in the District Court suggesting that the injury was caused otherwise than by the archiving duties: at [41] above. Both parties ran the case before the District Court on the basis that the archiving duties were the cause of the deceased being hurt on duty: above, at [45] and [51].
89 As the respondent recognised, the bifurcation of the decision-making power under the Police Superannuation Act presented it with a difficulty. It had no power to determine whether the deceased was hurt on duty, but it was required, for the purposes of forming an opinion relevant to the increment to the allowance, to determine the risks to which the deceased had been exposed (and which had materialised in causing a disease or injury), so as to assess whether they were risks to which members of the general workforce would normally not be required to be exposed in the course of their employment. It clearly does not conform to the purpose underlying the statutory scheme for the respondent to make its assessment on a different basis from that on which the Commissioner reached the antecedent decision that the deceased had been hurt on duty. That decision will be made in the context of a claim; it will therefore reflect the nature of the injury which was the subject of the claim and the circumstances said to give rise to the causal connection with the deceased's employment. Despite the division of responsibilities, the Commissioner and the Respondent must address the same injury and the same set of circumstances. Those will also define the subject matter of the proceedings in the District Court on an application for a determination in respect of a decision by either the Commissioner or the respondent.
90 The application to the District Court was not concerned with the decision of the Commissioner, which constituted a legal and factual pre-condition to the decision of the respondent which was the subject of the Court proceedings. The notice of appeal in this Court complained that the District Court did not give "full and conclusive effect" to the decision of the Commissioner. There was discussion in the course of argument as to whether the Commissioner's decision was "binding" on the District Court. However, it was not necessary to seek to characterise the Commissioner's decision in these terms. Absent an application under s 21, the Commissioner's decision stood and the Court, like the respondent, was required to address a different question.
91 That question required the Court to identify the risks to which the deceased had been exposed, which materialised in his injury or disease, leading ultimately to his death. It was then required to determine whether those risks were risks to which a member of the general workforce would normally not be required to be exposed. In some cases, those risks may be inherent in the nature of police work, where the duties differ from those of the general workforce. In other cases, of which this may be one, the work may be of a kind which would be encountered by some members of the general workforce, in which case it will be necessary to consider whether the latter would normally be provided with equipment or safe systems of work which were not provided to the police officer.
92 Whilst her Honour accepted that the deceased and other members of the Crime Squad working in the Crime Command's garage "were exposed to irritants, including dust and dirt", in the absence of "mechanical or fixed ventilation" which probably caused sneezing on the part of two members, her Honour held that the cause of others (including the deceased) "feeling ill, sneezing and/or coughing" may equally have been "unrelated to the conditions under which they worked" and may equally have been "due to other irritants or pathogens": at [58] and [59].
93 Because of this approach, her Honour neither identified the risks (because she was not satisfied that any particular risks had materialised in injury or disease), nor did she compare them with those to which members of the general workforce would normally be subject. She thus determined the matter on a basis which was not in issue before her, namely whether the irritants or pathogens in the garage in fact caused the deceased's injury and death injury.
94 On one approach, the Court's error may be characterised as a constructive failure to exercise the jurisdiction conferred on the Court pursuant to s 21 of the Police Superannuation Act. On an alternative approach, the error derived from her Honour identifying and deciding a question which was not before her. That was an error in point of law. Because the latter approach is open in the present circumstances, this Court's jurisdiction under s 142N is properly engaged and the appeal should be allowed.
95 I agree with the orders proposed by Giles JA.
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