HIS HONOUR: The plaintiff, Roland Scott Day, is a former sergeant of police. He was attested as a probationary constable of police on 30 June 1980, and there upon became a contributor to the Police Superannuation Fund established by the Police Regulation (Superannuation) Act 1906 ("the Act"). On 26 August 1998, the plaintiff prepared a letter of resignation. That is exhibit H. That was submitted to the NSW Police on 4 September 1998. The plaintiff requested that the effective date of his resignation be 26 September 1998. The plaintiff's resignation was accepted with effect from that date. At the time that his resignation came into effect, the plaintiff had been a contributor to the Police Superannuation Fund for 18 years, two months and 28 days.
On 4 June 2008, the plaintiff applied for a Medical Discharge Benefit as a former member of the police superannuation fund pursuant to 10B(2) of the Act. The plaintiff's application was considered by the Police Superannuation Advisory Committee (PSAC) on 30 April 2009. The committee declined to certify pursuant to 10B(2) of the Act that the plaintiff was incapable from a specified infirmity of body or mind of discharging the duties of his office "due to insufficient medical evidence".
A formal notice to that effect was sent by registered mail to the plaintiff's then solicitors, Messrs Baker & Edmunds, on 7 April 2009. That letter contained this erroneous advice;
"Your client may dispute this decision under s 67 of the Superannuation Administration Act 1996. If he wishes to dispute the corporations decision, please advise this office in writing, and we will then refer his dispute to the corporation's Disputes Committee, along with any other relevant material that you may want to consider."
On 9 June 2009, Messrs Baker & Edmunds requested that the matter be referred to the Disputes Committee "for reconsideration".
In order to pursue such a reconsideration, the defendant arranged to obtain written reports from Dr Antony Christie, and Dr Joseph Dunn, as well as qualifying Dr Peter Snowdon, psychiatrist, to examine and report on the plaintiff's condition. After further correspondence between the defendant and Messrs Baker & Edmunds on 27 January 2010 the defendant wrote this to the plaintiff's then solicitors;
"I have to advise that it is hard to see how the dispute could be determined in your client's favour. Should your client still wish to continue this dispute, please let me know within 21 days of this letter, and whether you will provide further medical evidence to support his claim."
The plaintiff's claim was then being handled by Mr Tom Edmunds. Mr Edmunds retired from practice because of a terminal illness, and his death occurred shortly after his retirement. Mr Stuart Gray, a solicitor then practising with Harris Wheeler, took over the plaintiff's claim. There was then desultory correspondence between the defendant and Mr Gray which was, happily for the plaintiff, affected by the decision of the Court of Appeal in SASTC v Rossetti [2018] NSWCA 68. The Court of Appeal determined that the appeal path which the defendant had advised Mr Edmunds back in 2009 was never the appropriate appeal path and, rather than going to the Disputes Committee and then the Industrial Relations Commission in Court Session, the right of appeal was always to this Court. On 14 January 2019, the defendant wrote appropriately to Mr Gray, now a partner of Cardillo Gray, advising the plaintiff of his right to dispute the decision of PSAC, made on 30 April 2009, by making an application to this court. Accordingly, the plaintiff filed a statement of claim on 2 July 2019.
The hearing of this case commenced on Monday 6 July 2020. The hearing was completed on Thursday 9 July 2020 and I told the parties I would give judgment last Friday. Unfortunately I was unable to do so because in my overnight reading I ascertained a major factual discrepancy which caused me need to reread a lot of the evidence. Hence I give this judgment today. I am now deciding a matter which ought to have come before me in 2009. Allowing for the normal lag between the filing of a statement of claim and the giving of a hearing date, I ought to have heard this matter in 2010, a decade ago, about the circumstances surrounding the plaintiff's resignation from the NSW Police which occurred almost 22 years ago. Necessarily, the evidence before me is hardly satisfactory. People have deposed to events occurring many years ago going back over up to a quarter of a century. Much evidence of a documentary nature either has been destroyed, or cannot be found, or was not the subject of a subpoena to produce documents.
[2]
Plaintiff's background
The plaintiff was born in April 1961 at Liverpool Hospital. He is currently 59 years old. In his affidavit, which was affirmed on 25 May 2020, he told me that he grew up on a dairy farm with quite a large "nuclear" family and the involvement of other relatives in the running of the farm. He told me that he helped his grandparents, his parents, and an aunt on the farm from a young age. I understand that this dairy farm was at Minto. Later the farm was sold off, although the two houses which had been built on the farm remained in the ownership of the plaintiff's wider family. Before working on the farm, the plaintiff's father had been an engineer in the Royal Australian Engineers. The plaintiff's father's advice to him was to apply for officer training by becoming a cadet at the Duntroon Military College. The plaintiff attended a local primary school and the Ingleburn High School. He was a good scholar. In 1978 he commenced to attend the Royal Military College at Duntroon as a cadet officer. He left Duntroon, however, after a period of nine to 10 months because, he said in his affidavit that he, "realised it was not the right career choice," for him. The plaintiff has given at least one history of undergoing bastardisation when he was a cadet officer. Before going to Duntroon, the plaintiff had expressed an interest in joining the New South Wales Police. After leaving Duntroon, he worked as a forklift operator and despatch clerk whilst waiting on advice from NSW Police as to whether he would be accepted into the Force. His application was successful and in 1980, he commenced at the Redfern Police Academy. That led to his attestation as a probationary constable of police on 30 June 1980.
He was then sent to Liverpool Police Station, at which police station he worked, or at one of its substations, namely the Green Valley Police Station. He appears to have worked at Green Valley for a relatively short time. He was then "headhunted" into joining the Police Prosecution Branch. The plaintiff was interviewed by Dr Jeff Bertucen, a consultant psychiatrist, on 16 August 2016. The plaintiff gave this history to Dr Bertucen,
"in 1982 he stated that he was 'headhunted' into joining the Prosecutor service. He initially declined, but then found himself faced with the prospect of a transfer to Moree in remote outback New South Wales. He feels in retrospect that this was a deliberate move to either coerce him to join the prosecutor's department or punish him for declining. Mr Day stated that he had another meeting with the Police Prosecutor's Department, as a result of which the transfer to Moree 'evaporated instantly'."
That, like many histories, appears to have been a reconstruction based upon a negative view of the NSW Police. I accept that when faced with the prospect of joining the Police Prosecutor's Branch, or being transferred to Moree, one would accept the former rather than the latter, which essentially is the history the plaintiff gave in his affidavit. However, if the Police Force wished to "punish" someone, they would transfer that person to Moree without giving him a chance to reconsider his attitude.
In his affidavit, the plaintiff told me that he began his training as a police prosecutor not in 1982, but in 1981. He told me that that training was carried out in the Sydney metropolitan area, and as I understand it, he worked for some time at Police Headquarters when that building was in College Street, Sydney. In 1984, the plaintiff received a Distinction pass in the Police Prosecutor's Training Certificate Course.
[3]
Work at Dubbo
In or around 1988, the plaintiff was transferred from the Sydney metropolitan area to Dubbo to work on the Bourke and Brewarrina Magistrate's Circuit every second week, and on alternative weeks, he worked as a prosecutor in Dubbo. Paragraph 22 of the plaintiff's affidavit, which is exhibit B is this,
"The police work I performed in that area was local court work and Coroner assist work. I also appeared for many Government departments such as Fisheries, National Parks, Local Council and towards the end of the time, the DPP because the DPP did not service the Bourke Brewarrina region. A lot of that work involved horrendous domestic violence amongst the indigenous population, including murder allegations, assaults, driving offences and drug offences."
The next paragraph of the plaintiff's affidavit tells me in detail how he came to hate the effect of what we now routinely call domestic violence. Whilst working at Dubbo, the plaintiff met the lady who became his first wife, Belinda. At the time she was 16, and the plaintiff would have been 28 or 29 years old.
[4]
Work at Lismore
On 27 April 1991, when the plaintiff was 30 years old, he transferred to Lismore to work on the north coast Magistrates Circuit as a senior prosecuting officer and managing officer. The following two paragraphs of his affidavit are these;
"26. Again, the work I did was a mixture of serious assaults, driving offences and drugs. There was a substantial Domestic Violence issues that I feel was directly associated with cannabis/alcohol abuse. The cannabis offences were far more frequent on the north coast. There was a lot of cultivation of cannabis on the north coast.
27. The drug offences mainly involved cannabis possession, cultivation, use or supply. with respect to cannabis use, I initially held the view that the legislature had prohibited probably for a good reason, and since it was against the law, and people were committing offences by using, growing, possessing or using it, I would prosecute the cases. I never used it and did not associate with people who did."
There then follow three lengthy paragraphs in which he states his opposition to the use of illegal drugs. Paragraph [31] of his affidavit is this;
"I also came to form the opinion that the cash generated by drugs was potentially corruptive within the Police Force. This was always well hidden, but could take many different forms."
However that opinion appears to have been formed by the plaintiff because of his experiences from approximately 1996 to 1998.
The plaintiff attended, when based in Lismore, at Tweed Heads, Murwillumbah, Mullumbimby, Byron Bay, Ballina, Maclean, Grafton, Kyogle, Casino, Coffs Harbour, Bellingen and Macksville as well as Lismore. He clearly spent a great deal of his time on circuit.
Between [36] and [52] of his affidavit, the plaintiff spent some length explaining to me his frustrations with the quality of the police briefs that he was given, and with what he believed to be the incompetence of many of the police who prepared briefs, or were potential witnesses in a prosecution. He expressed views that he felt frustrated by losing cases that were "perfectly winnable".
In October 1995 he was awarded the National Medal for service to the community. After qualifying as a police prosecutor the plaintiff decided to study the law through the Legal Practitioners Admission Board. That led to his being admitted to practice on 20 December 1996. The plaintiff said this;
"This law course made me much better at prosecuting. I understood issues between civil and criminal far better after I had completed subjects such as contracts, torts and Equity. This was especially helpful in Fraud cases."
[5]
Plaintiff's first wife
One of the principal witnesses to corroborate many of the plaintiff's allegations is his first wife, Belinda. It is necessary to understand a little about the nature of their relationship. Belinda made a statement on 12 October 2007. That statement was made to a private investigator retained by the late Mr Tom Edmunds. That statement contains this matter;
"4. In 1991 Roland had the opportunity to apply for position in Lismore working as a Police Prosecutor on the north coast circuit. I knew he was happy in Dubbo, and he enjoyed the lifestyle, but I believed he was looking for new challenges. In April 1991, he left Dubbo to take up the new position in Lismore.
5. I was realistic and I knew that Roland would more than likely meet other women and form relationships when he moved to Lismore. Even so, the bond that we had was very real, and we kept in touch by telephone and we would visit each other occasionally. Later that year, when I had finished my higher school certificate, I moved to Lismore so I could be closer to Roland.
6. He was still relatively new in the town, but in only a few months, Roland had settled in and developed a great circle of friends that I eventually met. Roland was confident and outgoing, but more than anything, he was a fun person and people naturally gravitated towards him. A lot of his mates were police colleagues, and at the weekends we were always out and about doing things like boating, or at barbeques with friends. We had great holidays together in Australia in places like Fraser Island and camping in the outback [at] Broken Hill. One year we also went skiing in New Zealand.
7. Over the next few years, our relationship grew, and then in about 1994, Roland asked me to move in with him. We lived together for almost four years before we eventually married in 1998. Roland and I had a deep and loving connection and I believed I was marrying my best friend. Our life together was great. We both saw a happy future ahead. We lived in our home, and we had no money worries. Roland had a great job, and I know he saw the Police as a long term career."
In 1996, the plaintiff purchased a property on Mountainview Drive at Goonellabah, a suburb of Lismore on the heights above that city. He bought the house in his own name, rather than in common, or as a joint tenant with Belinda.
[6]
Alleged Stressors
There were two major stressors that the plaintiff told me of. The first was his relationship with a senior police prosecutor who was based at Coffs Harbour, and who has been given the pseudonym, Mike. Commencing in [60] of his affidavit, the plaintiff said this;
"We started out as friends as I knew him from my time as a Court constable many years before at Liverpool. I found him to be a very bright prosecutor with his work. I had no doubt in his competence and capacity to perform his duties. He was a very good prosecutor, and I feel he was also somewhat sympathetic to the issues I was continually raising about the standard of briefs.
61. However, he had an aspect to his personality that I found particularly difficult to deal with. He was a man who seemed substantially focused almost entirely on sex. When he first spoke about it, I thought it was a bit funny, as my view was that it was his private life, so what he got up to was his business. If he spoke to me privately, I was not so worried, but if I heard him speaking to others, I cringed at the things he would discuss, especially in the presence of women whom I thought he naïvely was trying to impress, and secondly, if he was saying it in front of me, then he was clearly uninhibited with his sharing of his sexual prowess.
62. The problem was that, over time, almost every conversation he had that I observed contained sexual references. I am pretty modest about my private life, but [Mike] was vocal about his. His conversations were usually related to bruises he had on himself from visits to women who are prepared to walk on him with high heels. I regularly was shown his chest and other parts of him that were severely bruised by what he said were high heels walking on him. I heard about his foot fetish so many times, I feel ill writing about it now. I've walked in on him in the work arena and he was giving foot massages to policewomen in the prosecutor's office. His comments continually about women's legs etc were sickening. I received verbal complaints from police employees, including policewomen, about his conduct which I was convinced was sexual harassment. This was the point where one woman [name not to be transcribed] quit her role as a court process officer in Lismore to get away from him….."
One problem that the plaintiff told me of was that he believed that Mike had the support of Chief Inspector Parkin who was in essence the head of the North Region Prosecutors Branch. Mr Parkin was based, as I understand it, in Gosford. It appears that Mike also had the support of a senior officer at Coffs Harbour where he was based. I need not say much more about the interaction between the plaintiff and Mike because the plaintiff made it clear that he could handle his interaction with Mike, but he could not handle the other stressor which concerned a complaint about missing illegal drugs.
At T31.45 the plaintiff said this in cross-examination:
"I wouldn't be here today but for that drug matter and the things that - that I felt I was being attacked on."
At T32.02 the plaintiff said this:
"Even the Mike incident was something that I would have continued to handle."
The plaintiff's major complaint was about the drug matter to which I have just adverted. Commencing at [85] of his affidavit, the plaintiff said this:
"In late 1997 I began to notice what I thought was more than the usual unexplained discrepancies in briefs coming from the drug squad Officers. Maybe I was looking for this to prove a point. I don't really know. I was clearly obsessed, on reflection. I raised these issues with the Local Area Commander a few times as it seemed to me that the briefs were purposely inept so to facilitate a plea of not guilty and a travel back for court for the officers involved. I was becoming paranoid and suspicious of the conduct of the officers and I raised these thoughts only to be pacified with comments as such as I will have a word with the Detectives to improve their briefs.
86. It was about this time that I recall receiving an anonymous note telling me to, 'Stop the shit' and just do my job. I was frustrated and angry about the lack of response from the leaders of the specialist squads, and the continual errors I was finding in the briefs. On reflection I was obsessive. Perhaps I lacked understanding as to the pressures on police whom I was critical of and the fact that many had simply not been educated properly on criminal proofs and brief preparation. I got no joy in being a brief critic all the time and time and again. Perhaps it was due to corruption. On reflection I feel I was over the top with my criticism and/or misguided with my thinking. But the problem was that subsequent events confirmed that my suspicion of corruption was well-placed.
87. In early 1998 I found a matter at Coffs Harbour where a large quantity of amphetamines seemed to go missing from evidence. After the initial seizure, an occurrence pad entry was generated nominating that 113 grams of amphetamines had been seized. This was a commercial quantity and would result in a more serious charge. This was reflected in the Facts Sheet that accompanied the brief. However, two weeks later, I was presented with a Facts Sheet with a nominated amount of 13 grams, which fell within personal use and would be unlikely to attract a major penalty. I thought that it was important to find out what had gone on. It could have been a typographical error, which can occur in any system, but it is unlikely to have gone as far as the Facts Sheet. If that was the case, then the occurrence pad entry and first facts sheet were wrong and we would proceed on the lesser charges. So I went and checked the original occurrence pad entry and noticed that it stated that the amount was 113 grams. I took a photocopy of the occurrence pad entry and kept it with my files. We proceeded on charges of 113 grams. I don't recall what else I did now but I was convinced that it was a corruption issue of substantial note.
88. The officer in charge insisted on proceeding on 13 grams and presented me with a copy of the occurrence pad entry that nominated 13 grams - the document had been altered. I knew it but did not say it to him. This could only have occurred through corruption. Either the police had seized 113 grams and decided to pilfer 100 grams for personal use or sale after the creation of the Occurrence Pad entry, or some deal had been done between the Police and the accused after the arrest to get the amount down for a personal use plea. There was no other explanation."
The plaintiff reported this discrepancy to Inspector Wadsworth, who was in charge at Coffs Harbour. However, the prosecution of this matter was then taken on by Mike, whom the plaintiff felt was instrumental in securing his absence from Coffs Harbour at the time that the prosecution was presented in court. In [90] of his affidavit, the plaintiff went on to say this,
"I raised it with [Mike] who essentially again said, 'There's something wrong with you. You're imagining things and causing trouble.'"
The plaintiff then found out that he was no longer to be rostered to prosecute at Coffs Harbour. Initially, the plaintiff was relieved by that decision. However, the plaintiff referred the matter to Internal Affairs. The complaint was given to Inspector Peter Gallagher, who was the officer in charge at Lismore.
I have some difficulty in the position adopted by the plaintiff about this matter. Under the Drug Misuse and Trafficking Act 1985, distinctions are drawn between the quantum of any illegal drugs. For amphetamines, the Act currently provides this:
Quantity Amount
Small 1 gram
Trafficable 3 grams
Indictable 5 grams
Commercial 250 grams
Large commercial 1 kilogram
[7]
I have not gone back to see whether it was the same regime in 1998, but if any things have changed in the Drug Misuse and Trafficking Act, the amounts in question have been reduced rather than increased, in response to the government taking a hard line on the use of illicit drugs. Section 29 of the Drug Misuse and Trafficking Act 1985 is this:
29 Traffickable quantity - possession taken to be for supply
A person who has in his or her possession an amount of a prohibited drug which is not less than the traffickable quantity of the prohibited drug shall, for the purposes of this Division, be deemed to have the prohibited drug in his or her possession for supply, unless -
(a) the person proves that he or she had the prohibited drug in his or her possession otherwise than for supply, or
(b) except where the prohibited drug is prepared opium, cannabis leaf, cannabis oil, cannabis resin, heroin or 6-monoacetylmorphine or any other acetylated derivatives of morphine, the person proves that he or she obtained possession of the prohibited drug on and in accordance with the prescription of a medical practitioner, nurse practitioner, midwife practitioner, dentist or veterinary practitioner.
It can be seen therefore that 13 grams of amphetamines is both a trafficable quantity and an indictable quantity. It was certainly not a commercial quantity. 13 grams of amphetamines would justify a prosecution on indictment in this Court. The only difference between 13 grams and 113 grams would be the quantity of the drug, which, depending on its purity, might go to the level of penalty to be imposed, rather than the nature of the charge with which the accused person was arraigned.
Suffice to say that the plaintiff's complaint to Internal Affairs generated resentment within the local police ranks. There were clearly those who sided with Mike and some who sided with the plaintiff.
The matter which caused me to delay giving judgment on Friday was that the timing of the drug matter given by Mr Nick Moir was different. Mr Moir is now a member of the Bar. He was a police prosecutor who resigned and then joined the Many Rivers Aboriginal Legal Service. Mr Moir joined that service on 1 August 1997. I should indicate that Mr Moir gave evidence that in 1997 and 1998 there were four Aboriginal Legal Services covering this state. It appears that they have since all merged. This led to the Many Rivers Aboriginal Legal Service being referred to in this hearing as merely the "ALS". The Many Rivers Aboriginal Legal Service had in 1998 offices in Coffs Harbour, Kempsey, Lismore and Newcastle. Evidence was given that its headquarters may have been in Grafton, but the letters from the Many Rivers Aboriginal Legal Service that have found their way into evidence do not refer to any office at Grafton.
Mr Moir started as a police prosecutor at Lismore in late 1994, or early 1995 because a local prosecutor, Bill Larden, went on to long term sick leave. Not only was Mr Moir working at Lismore, he was also doing circuit work between Tweed Heads and Gosford, along the New South Wales north coast. At the end of 1996, he went overseas and returned to Australia in 1997. Prior to his overseas travel, he had been offered a fulltime position at Lismore Local Court. However, when he returned from his trip, he found out that the promise that had been made to him by one of his superiors was not kept, and that caused him to submit his resignation some three weeks prior to joining the ALS. That means that his resignation was tendered in early July 1997.
Mr Moir believed the drug problem which was the plaintiff's major stressor happened in 1997 before he left the police force, rather than in 1998. I accept that Mr Moir did his best to tell me the truth. However having reread his evidence and the evidence of certain other witness, I am persuaded that the drug problem raised its head in or about early 1998 rather than a year earlier. The key to that is in my view the evidence of Belinda. The plaintiff and Belinda married in February 1998. That is contained in [7] of her statement of 12 October 2007 which is exhibit E. She affirmed an affidavit on 31 January 2020, which is exhibit D. In [52] of her affidavit, Belinda said this;
"We had a beautiful wedding which we paid for by ourselves in full without any help from friends or relatives. The wedding was at Byron Bay and many people say it was the best wedding ever. The guests probably always says that, but honestly it was great."
There is no suggestion that at the time of their wedding, the plaintiff and Belinda were troubled by the aftermath of the Internal Affairs complaint about the drug deficiency. Furthermore, the vast bulk of the evidence indicates that the harassment, which essentially what the plaintiff says occurred, happened over a relatively period of time, a matter of six months rather than a matter of 18 months. Therefore I have to accept that Mr Moir's estimate of when the event occurred is based upon a poor memory.
The plaintiff referred in [93] of his affidavit to his marriage to Belinda in February 1998. There does not appear to be any dispute about the timing of their wedding. It is common experience for the courts to be told of a date of a wedding anniversary by a wife, but the date of the wedding is usually not the subject of the active of recollection by the husband. That may sound sexist, but that is clearly my experience, and for example, was drawn to my attention by His Honour Judge Frank McGrath, a former Chief Judge of the Compensation Court of New South Wales, and, before that, the Chairman of the original Workers Compensation Commission. His Honour is married with four daughters, so he had some exposure to female proclivities.
In any event, after referring to his marriage to Belinda at [93] the plaintiff went on to say this;
"94. Sometime after this and after feeling isolated and bullied by [Mike] and the bosses whom [sic] clearly just wanted me to 'shut up', I began receiving threats and verbal abuse from Police officers. I expected this from Coffs Harbour police because of [Mike], but I was getting it at Lismore. I was being ostracized from parts of my social circle, and tried to avoid associating with police officers. I was being called names by other officers at the station, mostly under their breath as they would walk past me, but it made me feel sick every time.
95. Belinda and I started receiving telephone calls late at night. Some nights we received two or three calls in a night. Belinda told me she was getting these calls while I was away on circuit duty.
96. Another incident is when our dog disappeared for three days. Belinda had arrived home to find the side gate open the dog missing. The dog returned after three days with signs of having been beaten. I recall Belinda thinking it was perhaps the police, but I don't think so. I think just a coincidence."
Belinda in her affidavit discusses the missing dog issue between [88] and [90]. She states that in her mind the dog going missing was "no accident". However, that was not the attitude adopted by the plaintiff. It is clear, as I will seek to show that Belinda has developed an animus against the NSW Police, and I prefer the evidence of the plaintiff on this issue to that of Belinda.
The plaintiff's affidavit then continued thus;
"97. I felt scared and angry because of what was happening. My hands began to shake involuntarily on occasion without warning. I could not control it. I was dizzy and had trouble driving to work a few times and had to stop at the roadside to wait for it to pass. I had no idea what a panic attack was but I do now…
98. On 10 May 1998 I applied for promotion to the rank of Inspector to apply for a Legal Supervisor role in Sydney. I felt I had to get away from the North Coast circuit. My application was endorsed by my Local Area Commander, Senior Sergeant John Boyd on 22 May 1998."
The plaintiff told me that he remembered going to Parramatta to be interviewed for this job as Inspector but was advised at the interview that his application was unsuccessful. I should also point out that the senior sergeant Boyd was not the patrol commander at Lismore, but rather the acting head of Prosecuting Services North in 1998. No evidence has been put before me about the plaintiff's application for promotion, nor why his promotion was unsuccessful. It is highly unlikely that the plaintiff's application disclosed his real reason for wanting to transfer to Sydney, that he was experiencing difficulty with his colleagues in the Northern Rivers area.
The plaintiff's affidavit then continues thus:
"99. In or around mid-1998 I felt that I needed to leave the Police Force. I withdrew from my family and remaining friends. I did not want to see anybody and I did not want to talk about it even to my brother whom [sic] was then an officer at Lismore. I felt sick every day. I had no expertise in psychological issues and I did not know what anxiety and panic attacks were, but I do know now…I wasn't eating much and I was drinking too much which helped me sleep. It was quite a bit more than I used to. While I did maintain contact with my family, I did not speak, I did not feel that I could tell them what was going on. I always put on a brave face so to speak. I did not want to show weakness, it was not my way. I actually wish I understood what was happening. All I wanted to do was to work and I didn't want to be shaking and dizzy and stressed. I thought it was my heart and that is the reason I went to see the doctor to see if I could get some medication to settle me down."
The doctor in question was Dr Robert Millar, a general practitioner at Lismore that the plaintiff appears to have consulted on 21 August 1998. This was towards the end of the plaintiff's career in the NSW Police.
His affidavit then continued:
"100. I didn't want to leave the police but I wanted to get away. I was committed to the Police but I could not face going there. I wondered if I could get leave without pay so I first thought about a role with the DPP whom I thought would support my efforts more to improve systems and that they had a stronger legal base from which my efforts would be supported. However, there were no such openings. I struggled to work out what I wanted to do. I knew I had committed my adult life to the police and also knew that doing anything else was foreign to me and I was apprehensive.
101. At some time before my resignation date I had to go to Lismore Police Station to pick up something. I cannot recall what it was. I had an anxiety attack in the car outside the station and I could not get out of the car. I recall calling Belinda at this time and telling her, 'I can't get out of the car, I'm not good'. I arranged for my brother to attend to collect my things."
There is one known occasion when the plaintiff had his brother, a then detective senior constable working in Lismore, go to the Lismore Police Station to clean out the plaintiff's locker. That was at the time of the plaintiff's resignation. That might be the time to which the plaintiff was referring. If so it was well after his resignation had been tendered and accepted. The cross-examination in this regard can be found from T38.42 to T39.19 and also at T53.01.
There are some contemporaneous documents which assist in establishing the chronology in the middle of 1998. Mr Nick Moir, who remained the plaintiff's friend, was concerned about him, and tried to persuade the plaintiff to leave the police force and to go to work with the ALS. To that effect, Mr Moir discussed the matter with the principal solicitor of the Many Rivers ALS, Mr John Boersig. On 31 July 1998, the plaintiff submitted a report. It commences with an application for 12 months leave without pay, commencing on 30 August 1998 and approval being sought for secondary employment during that period as an advocate for the ALS. Under the heading, "Background", the document says this:
"On Friday 31 July 1998, I was offered the opportunity to take a position with the Aboriginal Legal Service at Taree to service the surrounding districts as required.
The period in question is 30 August 1998 to 28 August 1999.
COMMENT
I request that favourable consideration be given to this application for the following personal reasons.
1. To broaden my knowledge and ability as an advocate.
2. To enhance my prospects of promotion within the NSW Police Service.
3. To provide me with the experience as an advocate in the District and Supreme Court.
4. To allow me to in fact utilise my current Supreme Court practicing certificate.
5. After the completion of this term, I'm willing to transfer to Newcastle/Gosford area, thereby not requiring that you relieve my position temporarily until August 1999.
6. My experience and understanding of the Criminal Law would be advantageous to the Police Service and the Aboriginal Legal Service during this period.
7. I believe it would be instrumental in reducing court delay significantly by proper brief analysis, providing informed and accurate advice to clients and a significant and proper liaison with the relevant prosecuting bodies."
The application then goes on to refer to a number of matters that the plaintiff asked to be taken into account. In essence, there are 13 of them, and many of them speak of the benefit to be derived by the NSW Police, as well as by the ALS and the Legal Aid Commission. There is no mention whatever of any personal difficulties which the plaintiff may have been working under at the time.
On 5 August 1998, a Senior Sergeant Boyd discussed the application and recommended that it be declined. The essence of Senior Sergeant Boyd's recommendation was this:
"While I appreciate the matters raised by Sergeant Day in his report dated 31 July, 1998, unfortunately I am unable to support his application. Prosecuting Services North has suffered from staff shortages of five prosecuting sergeants for a period in excess of two years. It has only been recently that officers have been selected for these positions, and I anticipate that these positions will not be occupied until at least August, 1998. Once again, the remaining prosecutors would have to bear the burden of these staff shortages.
Further, having regard to the nature of the proposed duties for the period of 12 months, there may well be perceived conflict of interest having regard to the fact that he would remain a member of the Police Service during that time."
On Thursday 13 August 1998, the officer in charge at Coffs Harbour, Superintendent Wadsworth, informed the plaintiff that he was placing him on the Internal Witness Protection Program. According to a document generated by the plaintiff on 15 August 1998, at that stage, he had not heard from anybody from the Internal Witness Protection Program.
On 14 August 1998, Mr Boersig addressed a letter to the plaintiff concerning the position of a solicitor with the Many Rivers ALS in the Taree area. It says this:
"I refer to our telephone conversations regarding employment as a solicitor for a one year period, commencing September 1998.
I note your concerns regarding possible conflict that may arise pertaining to your status as a prosecutor with the New South Wales Police Service. I believe we can overcome any difficulties or conflicts should they arise.
I look forward to your employment with confidence that the opportunity will bring rewards to the Police Service, our organisation and our clients."
The letter is addressed to the plaintiff, merely as the "Lismore Prosecutor", and it may well be that the letter was either hand delivered to the plaintiff or sent to him in some electronic form on or about 14 August 1998. An event occurred on the evening of that day.
The event on the evening of 14 August 1998 is best described by Belinda in her statement of 12 October 2007, Exhibit E. That contains this matter.
"28. I don't remember the exact date but it was about this same time. Roland had been to visit a mate, Craig Ponton, who lived in Modenville. I had gone to pick up Roland and I was inside talking to Craig over a cup of tea. We were sitting there talking when all of a sudden we heard the sound of a gunshot. I grew up on a farm so I could tell the sound came from nearby. I said to Craig, something [like], 'Where is your dog, where is Zac?' We all went outside and I saw Craig's neighbour Mick Moss who was a police officer at Lismore standing there with a rifle in his hand. I looked around and saw Zac in the back yard. He was standing up but gasping for breath and he had a stream of blood coming from his neck. I ran inside the house and rang a vet I knew named John. I asked him to come out to the house but unfortunately Zac was too badly injured and he later died.
29. We called the police and reported the incident but it didn't go down too well that Roland was making a report on the incident against another police officer. From what he told me, Roland was made to feel the 'bad guy' for making the complaint against Mick Moss. It was an added a stressor and something that he didn't really need."
The first thing to note about this incident is that the action of Moss was not directed in any fashion towards the plaintiff but to Mr Ponton's dog. That Mr Moss acted badly can be seen by the fact that he discharged a firearm in or within hearing of a public place and performed what could be described as an act of animal cruelty. Whether it was reported to the police by the plaintiff or Mr Ponton is beside the point. Mr Moss had done the wrong thing and was eventually dismissed from the Police Force. However, this had really nothing to do with the plaintiff and it is clear when one looks at the chronology of the events that it did not directly influence what was later to occur.
On the following day 15 August 1998 the plaintiff made another report and a further application for 12 months' leave without pay. The plaintiff's report is this:
"On 5 August 1998 [sic, scil. 31 July 1998] I made application for 12 months' leave without pay. On 10 August 1998 this application was refused by Mr Des Mooney, Executive Director, Management Services Business Unit, Police Service NSW.
At the time of making the application certain events have taken place concerning my duties as a Police prosecutor that could not be disclosed in that report, or for that matter this report.
The events referred to had culminated in me [sic] being place on the Internal Witness Protection Program. Mr Wadsworth, Superintendent at Coffs Clarence Local Area Command informed me that he was officially placing me on the program on Thursday morning 13 August 1998 at Coffs Harbour. He said that I would be hearing from someone later that day with a view to ensuring proper procedure. At this stage I have heard from no-one.
During the week of 10 August 1998 matters have escalated to the extent that I am even more desirous of taking 12 months' leave without pay.
Even as late as last evening, my wife and I were inadvertently involved as witness against a police officer relating to an incident at Modenville near Lismore. This incident involved a police officer using a firearm off duty.
It is even more important to me now to be granted this leave without pay, more so than it was at the time of the original application. I believe that a decision to grant me leave in these circumstances will be important to the future of my career in the Police Service of NSW.
Please again consider this application in light of the further matters that I now know you are aware of. I fully appreciate the staffing difficulties you are experiencing, however my situation is such that my absence may be forced in any case."
On the following Thursday, 21 August 1998, at appears that the plaintiff went to see Dr Robert Miller at Lismore. The plaintiff was given a medical certificate. It says this:
"Sgt. Day is disabled due to acute anxiety and depressive reaction, 21/8/98 - 18/9/98 inclusive."
This medical certificate was sent by facsimile to the New South Wales Police from the facsimile machine held by the plaintiff and his wife at their home. The exact date it was sent is partially obscured. The date appears to be either 23 or 25 August 1998. 23 August was a Saturday and police prosecutors do not work on weekends. It is likely that the document was sent on Monday 25 August 1998. There is nothing else from Dr Miller in evidence. It is accepted that Dr Miller is deceased. However, whether his practice was sold or not, I do not know and there is no evidence before me of any attempt to try to obtain the doctor's clinical records. In any event it is common ground that the plaintiff saw Dr Miller once, and only once. It is also clear from the plaintiff's evidence that he was prescribed no medication by Dr Miller. That can be found at T53.29. It appears from the plaintiff's evidence, and I am prepared to accept that he never returned to work with the NSW Police after being certified unfit by Dr Miller on 21 August 1998.
[8]
Plaintiff's resignation
As I mentioned towards the beginning of these reasons, the plaintiff prepared a letter of resignation which bears the date 26 August 1998. It is Exhibit HH. It commences with this matter:
"It is with sincere regret that I hereby tender my resignation from the New South Wales Police Service.
Effective as at the end of the rest day on 26 September 1998.
I always thought of myself as a career police officer and I fully expected that I would retire from the police service after the age of 55 years. However, that is not to be.
For the sake of the others experiencing the types of problem I have, that has led to this decision, I will bring certain issues to your attention."
There is then a heading "Excessive Workload" which is addressed in nine paragraphs. It complains of what the heading suggests and points out that the despite numerous requests nothing had ever been done to resolve the problem. There was also a discussion of the conflict between the Police Prosecuting Branch and the DPP. The next section of the resignation is headed "Rank Structure" and contains six paragraphs over one page. It commences thus:
"The recognition of the responsibilities I have thus far referred [to] does not mean I believe or am seeking greater pay, or in my opinion the remuneration provided to these officers at the rank of incremental sergeant is quite satisfactory. The problem is that the rank of sergeant or acting sergeant is totally unsatisfactory because the responsibilities commensurate with the duties of a police prosecutor far outweigh the rank provided for such duty."
In other words, the plaintiff believed that police prosecutors should be given a commissioned officer's rank. The third section of the resignation bears a heading "Lack of Opportunities for Police Prosecutors" and essentially complains about a lack of a suitable career path for those who undertake the work of a police prosecutor. The final section bears a heading "General" and contains this matter:
"Please ensure my comments are conveyed to the Commissioner if appropriate. I am of the opinion that he is the person who must know about these types of matters. He is the only one who can effect changes that must urgently be made to ensure for the future of police prosecutors and in my opinion to substantially improve the morale of all police.
Thank you for many good years as a police officer, and I provide these comments only as 'food for thought'."
One will note that there is no complaint made by the plaintiff about his inability to work any longer as a police prosecutor, or of any psychiatric illness which caused him to be unfit to perform such work. It is clear from the "received" stamp on the first page that the police service received the resignation on 4 September 1998 which was a Thursday and Senior Sergeant Boyd asked the staff administration officer to process the plaintiff's resignation. It came to pass that the plaintiff's resignation was processed and his last date of service was on 26 September 1998.
At the same time that the police service received the plaintiff's resignation, an application for leave of absence was processed, that is, on 4 September 1998. The leave sought was sick leave for the period covered by Dr Miller's certificate 21 August to 18 September 1998. The application for leave has been signed by Senior Sergeant Boyd. It contains this endorsement:
"Officer has not returned to work to sign application. Signed by J Boyd, Acting Commander."
The application for the sick leave was approved on that day and the sick leave was granted.
On the day prior to the receipt of the plaintiff's resignation and the day when the plaintiff's sick leave application was processed, Senior Sergeant Boyd, as acting commander of Prosecuting Services North sought an urgent review of the previous decision to decline leave without pay. It records that Chief Inspector Parkin had conversed with Mr Howard Bell of Legal Services concerning the circumstances surrounding the plaintiff's application. In a number of places, the application is marked urgent. It would appear that Senior Sergeant Boyd may have suspected that the plaintiff was about to submit his resignation. However, Senior Sergeant Boyd was not called to give evidence nor was any statement taken from him nor was his absence explained. However, it is likely that he has long since left the NSW Police and his current whereabouts might presently be unknown to the NSW Police.
The plaintiff's allegation is that he was suffering from the anxiety and depression certified by Dr Miller. In that regard he is supported by Belinda. In evidence there is an affidavit of the plaintiff's brother, Mr Whayne Scott Day affirmed on 26 May 2020 and to which is annexed a statement made by Mr Whayne Day on 24 September 2007. The time of the plaintiff's resignation as I have already mentioned Mr Whayne Day was a detective senior constable of police. At the time he made his statement on 24 September 2007 he was a sergeant of police living in East Maitland and as I understand it working somewhere in the Hunter Valley. Mr Whayne Day was discharged from the New South Wales police force on 10 March 2016. In [12] of his statement of 24 September 2017 Mr Whayne Day confirmed the plaintiff's complaints to him about his prosecuting colleague, Mike, to which I have earlier referred. The next paragraph of Mr Whayne Day's statement is this:
"13. It was about the same time that Roland came to me. He told me he had an ongoing court matter in which he had to examine documentation regarding exhibits in relation to drugs. I don't know the exact facts of the matter but Roland did discuss with me a fear that he had identified corrupt practises within the police at Coffs Harbour relating to a reduction in drug weights between the time of collection and the time of analysis."
Mr Whayne Day then set out the usual police practice regarding powdered substances that was used at that time and then continued thus:
"I could tell Roland was worried and was very distressed by what had happened as usually he never discussed his cases with me. He said to me something like 'If I don't report this, I can be seen as part of the corruption and conspiracy'. His hands were tied and he felt he had to report it. I am aware he did report the incident and that, as a result, he was placed on the internal witness security program. However, as it happened with me, when I was similarly placed on the IWSP for reporting and incidence of corruption, there was no follow-up and no support. I believe Roland felt he had been hung out to dry."
There was an incident that Mr Whayne Day could recall when he went to the plaintiff's home on his way to his home from work when he was still wearing his uniform overalls. There was a confrontation which is addressed by Mr Whayne Day in [9] of his affidavit of 26 May 2020 which is Exhibit F. That paragraph is this:
"To the best of my recollection I had the following conversation with Roland at that time:
WD: G'day, Rols, how's it going?
RD: What are you doing coming to my house in your uniform?
WD: What?
RD: Get that thing out of here! I'm sick of seeing it.
At this point Roland gestured at my uniform.
WD: What's wrong?
RD: I'm sick of seeing the uniform, being around the uniform. I'm over it. Do you know how it makes me feel?
WD: Are you okay?
RD: No, I'm not. Every time I see that uniform now my anxiety goes up. It makes me sick to the stomach.
WD: How was I supposed to know?
RD: Well, now you do. Don't come around again wearing that.
At this point Roland shut the front door on me."
Mr Whayne Day then left his brother's premises and felt as if he were in shock. He pointed out that this behaviour was completely out of character for the plaintiff.
Mr Whayne Day told me that sometime in September 1998 the plaintiff told him he had "pulled the pin", meaning that had submitted his resignation. However, Mr Whayne Day did not know all the facts and in [19] of his statement of 24 September he made the assumption that the plaintiff was "over-reacting". Paragraph [20] of the statement is this:
"Once Roland had made the decision to leave the Police, things happened very quickly. Looking back on it, it seemed to me as if he wanted to separate himself from NSW Police and his past as a serving officer as quickly as he could. I organized a farewell for him as I felt he should not leave without there being some recognition for his years of service. He was most reluctant but then agreed; but he was very definite about who he did and did not want there. Then, almost overnight, he and Belinda literally packed up and left town. He took a job working for the ALS in Taree with a substantial drop in salary, another move at this time I could not understand."
After resigning, the plaintiff sold his property at Mountainview Drive, Goonellabah, to his brother Mr Whayne Day. In cross-examination Mr Whayne Day gave this evidence:
"Q. He was living at 49 Mountainview Drive, Goonellabah.
A. That's correct, your Honour.
Q. And you bought that property from him.
A. I did.
Q. For value?
A. For value, yes.
Q. So he didn't give it to you at a discounted price.
A. No, sadly.
Q. Do you remember how quickly after he resigned that you bought the property from him?
A. I couldn't give you specific dates, your Honour, but it is fairly quick.
Q. A matter of weeks?
A. It would have been a matter of weeks, yes."
Mr Whayne Day did not use that property as a residence but bought it as an investment property which was negatively-geared.
The selling of the house is one small contentious matter. For example, [32] of Belinda's statement of 12 October 2007 says this:
"Roland's behaviour around this time was erratic and he made some puzzling decisions. We sold the house in Lismore to Whayne so he could sort things out quickly. It was like he needed a clean slate and put everything behind him."
However, in her affidavit she makes a further allegation at [142] and it is to be remembered that the affidavit was affirmed on 31 January 2020 some 12 years at least after she had made her statement:
"Roland resigned from the Police Force around September 1998. We sold the house and moved to Taree. We sold the house, which was in his name, for [sic] very cheaply to his brother Whayne. I thought he was crazy to do this so cheap, but at least it was his brother. It happened very quickly. I felt like I was just a passenger while it was happening."
One can discern that the allegation about the selling the house at a discount is a recent invention compared to what the witness said in her statement made on 12 October 2007.
However, the plaintiff also spoke about the selling the house cheaply to his brother. At [126] of his affidavit the plaintiff said this:
"After leaving the police service we sold our house in Goonellebah to my brother Whayne. I sold it cheap because I was angry, I think. I never wanted to go back there ever again and we moved to Taree to a rental premises."
I prefer the evidence of Mr Whayne Day on this issue. The premises were not sold by the plaintiff cheaply to his brother, but for full value. The allegation that this was a cheap sale is a relatively recent invention. I should point out that there is no statement or anything made by plaintiff prior to the affidavit which he affirmed on 25 May 2020, getting on for 22 years after relevant events. For example, it is common practice for police officers seeking to be medically discharged or for former members seeking a medical discharge to provide a lengthy statement in support of the application. The list of documents which was annexed to the plaintiff's application of 4 June 2008 for medical discharge can be found on p 104 of the court book immediately after the last page of the 11-page document, and it is clear from the received stamp that it was part of what was sent to the defendant and received by the defendant on 6 June 2008. It refers inter alia to the statements of Belinda and Whayne Day, but there is no statement made by the plaintiff himself.
[9]
ALS at Taree (1)
As ought be clear from what I have already said, the plaintiff and his wife moved to Taree where the plaintiff took up an appointment as a solicitor with the Many Rivers ALS. When he took up that appointment is unclear. Although a subpoena for production was issued to the ALS there were no documents contemporaneous with the plaintiff's taking up his employment with that entity, which was unsurprising to Mr Moir who would clearly know the extent of the record-keeping of the ALS at Taree at the time. After all, he was doing the work for the Many Rivers ALS at Taree which the plaintiff himself took up.
It is clear from Mr Moir's affidavit that there was a perceived problem with the plaintiff's practising certificate, bearing in mind his leaving the NSW Police and moving to work as a solicitor with the ALS. Mr Moir's recollection is that the plaintiff started working for the Many Rivers ALS at Taree around Christmastime 1998. In chief the following evidence was given:
"Q. Did you have a telephone conversation with Mr Day in which he told you something about his police service?
A. Yeah, he - he called me. If we're…talking about him resigning, he told me he left, he - well, he 'pulled the pin', were his exact words. And…he inquired whether the…job was..still available and I then spoke with John [Boersig]. And….that was when it was discussed that he join the Many Rivers Aboriginal Legal Service. But he didn't actually join the Many Rivers Aboriginal Legal Service for some time after that because of his perceived difficulties with the LPAB...
HIS HONOUR
Q. He had to obtain a practising certificate, no doubt.
A. He..did, but that wasn't the difficulty. At the time, both Roland and myself had given undertakings because we'd been exempt from many things to become lawyers because we're prosecutors - we gave undertakings not to work for anyone but the Public Service of New South Wales. The Public Service was devolved and he had some concerns about whether he would be breaching his undertaking to the Aboriginal Legal Service. I informed him that a year earlier I had sought advice from Paul Rosser of Queen's Counsel on exactly that point. Paul Rosser had assured me and given written…advice that, 'No, the undertaking would be fine, would still be complied with because you are going to a non-profit organisation, a quasi-government organisation'. Roland was very paranoid and couldn't leave it at that and so it cost him a few months' work. And I'm sure those documents sit with the LPAB somewhere."
It would appear, doing the best one can, that the plaintiff started working with the Aboriginal Legal in November 1998, having resigned from the NSW Police on 26 September 1998.
[10]
Renvoi - visits by Police
Before going on to the ALS, I should advert to another matter of controversy with the Police, being visits made by the Internal Witness Protection Service and the Police Welfare branch to the plaintiff and his wife. There was some confusion in the evidence, especially in that of the plaintiff, about this issue. In his affidavit, the plaintiff said that he was visited by two Internal Affairs officers, concerned with the witness protection, on 13 August 1998. However, that is not mentioned in his report of 15 September 1998. The plaintiff himself admitted, at T 43 23, that he could not be sure as to what events took place and in what order they took place and how he was feeling. It transpires that it is likely that there was a visit by an officer from the Police Welfare branch sometime after the police received the medical certificate of Dr Miller dated 21 August 1998, which appears to have been sent to the police service on or about the Monday 25 August 1998.
Leaving out the date, [115] of the plaintiff's affidavit is this:
"I was visited by two officers from Internal Affairs. I was informed that I was being placed on the Internal Witness Protection Program due to the report I had made about the missing drugs from Coffs Harbour. I was quite shocked and became scared but angrier. 'How dare they', I thought! I was informed that someone would be in contact with me later that day to ensure proper procedure. Some days later I received a call from a person representing he was from police welfare and asking to drop in and see me. I do not know what my response was now, I recall the call but am blank after that. I think somebody came to see me - I truly don't recall who, but my recall is that someone sat with me saying they were the welfare branch. I am doing my best to recall that my recollection now is vague other than I was angry."
Why he should be angry by being called upon by somebody from the Police Welfare Branch is not explicable other than some form of mental disorder. Generally, Police Welfare Branch are there to assist anyone they perceive may need some help. Furthermore, it is clear from the contemporaneous documents that the plaintiff was advised by Superintendent Wadsworth at Coffs Harbour on 13 August 1998 that he was being placed on the Internal Witness Protection Program so that when two people from that Program/Internal Affairs turned up at his place after that date, he could hardly be surprised by it. It is clear from his memorandum of 15 August 1998 that he was expecting it. There is corroborative evidence from the plaintiff's wife that they were visited by two people from Internal Affairs and later by somebody from the Police Welfare Branch. She thought, if my recollection be correct, that was about three days later. That puts these visits at some time between 15 August and, for example, the date of the submission of the plaintiff's resignation on 4 September 1998. Despite what slant the plaintiff may now place upon those visits there is nothing to suggest that they were in any way extraordinary or that the officers did not behave properly.
[11]
ALS at Taree (2)
The plaintiff said that he had difficulties working for the ALS at Taree. His affidavit contains this:
"127. In November 1998 I began working with the Aboriginal Legal Services in Taree. I felt okay but I was severely nervous and stressed about the new work. However, I started thinking that I could in some way get back to the police if I was appearing for people. I would show them how bad their briefs were and at the same time represent people whom I had always then thought were underrepresented.
128. The job paid about $20,000 less a year than what I was on with the Police, but I had to do something. I had to do what I knew I could make money doing even though it would bring me in contact with police but in a completely different context.
129. I had difficulties with my role. I was required to attend the police station to see clients and found myself becoming anxious and distressed. I had further issues dealing with the police officers involved in my cases. I did not trust them. I was still drinking a fair bit at this time and suffered from feelings of nausea and anxiety when travelling to work."
The plaintiff gave particular evidence about his initial requirement to attend upon his clients when they were held in custody at the Taree police station having what might be thought to be thought to be a panic attack. The plaintiff told me he obtained some Valium from his mother and took about half a tablet over a period of two months from when he started with the ALS at Taree but after that there is no evidence of his taking any form of medication or of seeking any medical treatment.
[12]
ALS at Newcastle
The plaintiff remained working for the ALS at Taree until 6 May 2000. He then obtained what may be thought to be a promotion to become the principal solicitor with the Many Rivers ALS at Newcastle. According to a curriculum vitae that the plaintiff prepared some time in 2001, he commenced the work in Newcastle on 6 May 2000. He was replacing Mr John Boersig who moved to the ACT where he is now the principal Aboriginal Legal Aid solicitor. The position in Newcastle was offered to Mr Moir but he declined it because he wanted to still spend all his working time in court. The plaintiff's position at Newcastle was essentially an administrative one appointing solicitors to various courts and supervising their activities but he, himself, still did court work, appearing less regularly than he formerly had when working at Taree. However, working in court he must certainly have been doing because he was invited by the then Chief Magistrate Ms Patricia Staunton to apply for the position of a magistrate.
[13]
Application for appointment as a Magistrate
Exhibit MM is the plaintiff's expression of interest to become a magistrate together with a chronology which covers four pages, and then two pages of information about himself, followed by a list of referees. The first referee put forward by the plaintiff to the Chief Magistrate was Mr Barry Hodgson, the resident Magistrate at Taree. Other referees were Mr Mark Shearing of the Newcastle office of the DPP, another was Mr John Boersig and another was the Assistant Dean of Clinical Legal Education at the University of Newcastle, Ms Carol Abele, and also the manager of the Many Rivers Aboriginal Legal Service and the Durawha Training and Development Corporation at Grafton.
The plaintiff's expression of interest commences thus:
"I write to express my interest in an appointment to the Magistracy. I am particularly interested in a Country Magistrate's position where my experience living and working in country towns with a high indigenous population would be an advantage.
I've extensively practiced as an advocate in the Children's Court, Local Court and District Courts in the State of New South Wales practicing mainly in the Criminal and quasi-criminal law. In recent years, as a solicitor advocate with the Aboriginal Legal Service, I have diversified somewhat in assisting and advising numerous Aboriginal persons in a variety of matters including civil, family, employment, discrimination, succession and childcare and protection issues.
My professional career as an advocate commenced in 1983 when I was appointed a police prosecutor. I had the benefit of appearing before numerous Magistrates throughout the State of New South Wales. I have developed a balanced and comprehensive understanding of the functions of Magistrates and their statutory/implied powers. I'm aware of the pressures associated with the appointment, both socially and professionally, and I believe I am equipped with the knowledge, experience, patience, compassion and understanding to professionally perform the task that may be required.
I've always maintained a strong rapport with the Legal Profession, Family and Community Services, Juvenile Justice, Probation and Parole, corrective services and the Police. My aim has always been to promote an atmosphere of respect and co-operation amongst parties to proceedings to assist in the proper and expedient dispensing of Justice.
I'm aware of the necessity to follow practice directions and maintain time standards. I pride myself on being able to make decisions expediently and accurately.
I respect individual freedoms and cultures, at the same time appreciate the difficulties often experienced by persons not equipped with the education and/or sufficient command of the English language required to promote the interests of justice on their behalf.
I believe in the Legal System in New South Wales and I look forward to the opportunity to advance the interests of Justice in any community if appointed as a Magistrate.
At present I also hold a position as a clinical lecturer with the Faculty of Law, lecturing in Criminal Law Advocacy I and II, at the University of Newcastle."
The plaintiff then enclosed his curriculum vitae and he then expressed looking forward to an opportunity of being interviewed for an appointment to the Magistrates' Bench.
The evidence is silent as to whether there was such an interview. There is no matter before me about the process of the plaintiff's becoming a magistrate other than an Executive Council minute paper and a copy of the plaintiff's commission. One would think that, in the normal course, the Attorney-General's Department would have checked with the referees put forward by the plaintiff and would have sought the advice in particular of the Chief Magistrate before appointing the plaintiff to the Bench. The executive council minute paper contains a recommendation by the then Attorney-General, Mr Bob Debus, recommending the appointment of the plaintiff as a magistrate and a mining warden. Her Excellency the Governor was pleased to approve the recommendation on 11 July 2001. The Commissioner under Her Excellency's hand and the Public Seal of this State was issued on the same day, 11 July 2001, appointing the plaintiff a magistrate with effect on 23 July 2001. I assume that in accordance with normal practice, the plaintiff was sworn in as a magistrate on 23 July 2001. The plaintiff's commission as a magistrate was entered in the Register of Patents No 87 p 515 on 11 July 2001.
Mr Whayne Day gave this evidence about the plaintiff's appointment to the bench:
"Q. When he got his appointment as a magistrate he was pretty happy that, wasn't he?
A. I think he was quite excited, yes.
Q. He told you about it, didn't he?
A. Certainly.
Q. I take it you went out to celebrate somewhere?
A. I came to - well, surprisingly I don't think we did go to celebrate. I came here the day that he was in the Downing Centre when he was sworn in. It's an amazing affair as you all know, but I don't think we went out to celebrate as such. I didn't go with him."
The appointment to the bench must have been a highlight of the plaintiff's legal career. It was no doubt an exciting time for him.
[14]
Plaintiff's allegation
Yet I am now asked to find throughout the time that he worked with the Aboriginal Legal Service at Taree and Newcastle, and during the time that he spent as a magistrate, and over the time since then that he was disabled by the infirmity of chronic adjustment disorder with mixed anxiety and depressed mood from working as a police prosecutor.
One aspect of that is that the plaintiff had a phobia about policemen. For example, when seen by Dr Peter Klug on 13 March 2008. Dr Klug recorded this:
"He experienced, despite his resignation [as a police prosecutor], persistent symptoms from that time on, including the following:
• Marked 'hatred' of police.
• Marked anxiety in response to any contact with police or reminders of his police service - this sometimes progressed to agitation.
• Social withdrawal.
• Diminished network of friends
• He phobically avoided his brother who was (and is) in the police.
• Irritability.
• Marital tension which he attributed to changes in his mental state - he separated from his wife subsequently - he said his social withdrawal, marked preoccupation with work related matters and moodiness 'drove her crazy' - they separated in 2001."
I am asked to believe that the plaintiff when dealing with police officers after he left the police service, had marked anxiety in response to contact with them, or any reminder of his police service. I must point out the obvious, that his work involved his appearing in court at Taree almost daily, dealing with a police prosecutor, and with police witnesses in contested matters. I would point out that he did his job so effectively that he was invited by the Chief Magistrate to take an appointment to the Bench, which he was successful in earning. His work as a magistrate in the Local Court required him to deal everyday with a police prosecutor, and dealing with police officers regularly giving evidence before him. Up until certain things happened when he was a magistrate, the plaintiff did not seek any medical treatment. Nor did he have any prescribed medication other than his mother's Valium which he took for two months at the beginning of his work at Taree, in November and December 1998. This brings into sharp relief a major problem with the plaintiff's case, its inherent implausibility.
[15]
The plaintiff as a Magistrate
The plaintiff's experience on the bench was both short and unhappy. It was short and unhappy because he misbehaved. The circumstances of what happened to the plaintiff are best set out in a report of Dr Bruce Westmore, a forensic psychiatrist, who examined the plaintiff on 26 June 2002. Under the heading, "Presenting complaint", Dr Westmore records this:
"I asked him of the history leading up to his current difficulties. He said for 20 years he was 'Part of the process as a police prosecutor and a defence counsel for the Aboriginal Legal Service'. He said that it has always been important for him 'that justice be done'. He said he became involved in matters to ensure that injustices did not occur. He said he left the police service and went into witness protection after he reported that 100 grams of amphetamines had gone missing. He said after he made that report he had problems with other officers.
He was then offered the job with the Aboriginal Legal Service and he decided that the Police Service was not something he wanted to be a part of. He said he was disappointed with the way he was treated by the police service after he reported something he felt had been a serious problem in the workplace.
He said he worked hard when with the Aboriginal Legal Service and he caught a number of police officers telling lies. He reported this and the police officers were investigated. He said he subsequently had some problems with the police although he said those problems did not affect his objectivity when at work.
He said in July 2001 he was appointed as a magistrate. He said he was hesitant about taking the position on because his wife had come from the country and she did not want to live in Sydney and he did not want her to leave him.
At this point in the interview he became quite tearful and distressed. He appeared to be very embarrassed about this emotional release and he attempted to contain it and hide it although intermittently throughout the rest of the interview, particularly when talking about his wife, he again showed signs of tearfulness and distress.
He said just prior to 11 September 2001 his wife told him she was leaving him. He stated, 'It distracted me quite a bit but I kept working'. On 12 September 2001 he started the case which is now to be the subject of some type of inquiry. He said he had been up all the previous night watching the tragic events unfold in the United States.
In the case in which he was involved, the defendant had allegedly held up a police badge to two little girls and asked them if they had drugs in their possession. He said it was also alleged that this particular person took or wanted to take the girls to some flats.
He told me the man was charged with [personating] a police officer, the penalty for this offence was he thought at the time about $600.
He said he formed the view that the police were prosecuting the man inappropriately. He said he believed he knew the relevant law at the time and said he felt he understood the potential seriousness of the accused person's behaviour regarding the little girls. He told me he had information about a number of other charges being faced by the accused, these matters related to alleged sexual offences.
He told me he could not understand why the prosecutor was following up the impersonate a police officer matter in contrast to the possible charge of enticing the girls away for whatever purpose.
He said he started to wonder if the DPP office had ever seen the facts in this particular case. He told me he did not say anything at the time but as the case went on he felt the prosecutor did not understand the Evidence Act. He told me it was a two day hearing and he was troubled overnight. He had a lot on his mind at the time, in particular his difficulties at home. He said he discussed the matter with his wife who became quite upset about the facts of the case. He felt this occurred because she was unable to have children. He then told me he and his wife had been trying for some time to fall pregnant. He said his wife felt he should do something about the situation at work.
He went to work the following morning, he was troubled again. He said he has been a magistrate for about four weeks in the courts at the time. He stated, 'I honestly did not know what to do…' He said he was facing a number of pressures. He said there were pressures and he felt he should not do anything in court which might lead to him being disqualified or anything which would waste the court's time. He said he just "wanted to do everything so right, at the time I was in a quandary".
He said he knew if he brought his concerns up in court, the prosecutor may be questioned at a later time as to why he did not proceed with the more serious charges. He said, in addition, if he brought his concerns up in court, he may be disqualified.
He told me he then contacted the police prosecutor by phone and asked him to come to his chambers. He said he wanted to suggest to the police prosecutor that that person get advice about this particular case. He said he wondered if the accused man was a paedophile.
He told me the prosecutor then told him things he should not have told him. He said he had given the prosecutor his views in private, but the prosecutor told him of other things about the man charged. He said he wanted the prosecutor to get advice. The prosecutor left his office.
He told me about 20 minutes later the prosecutor returned, he appeared to be agitated and worried. The prosecutor told him that he had spoken to the DPP about the matter. The DPP was upset that Mr Day had spoken to the prosecutor without the defence being present.
He said at the second meeting the prosecutor also wanted to shut the door, he seemed nervous and upset. Mr Day said he knew that calling the prosecutor into his chambers was not the proper thing to do in the first place. He said he did not want to be seen to be doing the wrong thing by bringing the matter up from the bench.
Following the meeting with the prosecutor described earlier in this report, he said he spoke to other magistrates for about 15 minutes, asking their advice as to what he should do. He said they advised him to put his concerns on the record. He told me he was advised he could not do anything out of court. He said he knows this or he knew that but he did not want to do anything in court either which might disqualify him.
He said he subsequently returned to court and he put on record what some of his concerns were. He told me he felt he had panicked.
He told me he is now 12 months down the track and he is more experienced and confident as a magistrate. He said when he returned to court in relation to this matter, he said he would be prepared to disqualify himself, although he said that he did not say that he had previously spoken to the prosecutor in private.
He described himself as being "sick" at this time and he said again that he had panicked. He apparently subsequently disqualified himself in the case.
He told me regarding the accused person that it was not anything personal. He said if the man had been charged with what Mr Day felt was the appropriate charges, then it would be out of his jurisdiction in any case. He said that he has since discovered that the appropriate prosecution authorities had been looking at the matter for some time in any case.
He reported after he disqualified himself, he disclosed to a senior magistrate by email what had occurred. He said that he told that person, 'The best I could recall (of the) conversation I had with the prosecutor.' He also wrote a letter of apology to Ms Baptie [of counsel] who was involved in the defence.
He said he was concerned about the prosecutor and Ms Baptie. He told me it was his fault that he had called the prosecutor into his office in first place.
Mr Day said following these particular series of events he attended a Christmas party at the end of the year. He said he saw Ms Walker from the DPP. She had been the person who was upset about what had occurred in the first place. He told me that he went up to her and apologized to her, but she got very angry. He said he had had a few drinks and he said to her, 'Yes, dear.' He told me that she hit him in the face with her hand. He said that she then started to disclose to him what she understood he had said in the previous matter. He told me he was not aware of what the prosecutor had reported had occurred after Mr Day had met the man. He told me he had referred to the accused person as a paedophile but the prosecutor was attributing comments to Mr Day which the prosecutor himself made.
Mr Day said he then spoke to the police prosecutor at the Christmas party, that person would not talk to him. He then said he spoke to the person very loudly at the party saying, 'You're a fucking liar'. He said he realized that at the time he was not aware of what other people believed he had said. He stated, 'I have had a heart attack at that point'. He said that he understands and accepts that he behaved in an unbecoming fashion for a judicial officer. He said again he taken alcohol that day.
The matter was then reported to the Judicial Commission, this included his behaviour at the Christmas party. He said he was previously apologizing for what he had actually said, not what it was alleged he said by the prosecutor. He said he felt the prosecutor had 'twisted things around'.
I asked him to clarify the pressures he was experiencing in his life at the time these events occurred. He reports again there were time pressures in court, there was his inexperience. He said there was the stress of his marriage breakdown and the stress of September 11 events in America.
He told me his wife left him about six weeks after this incident in the court case."
The plaintiff did not list at that time that the stress he was under was the continuing stress which caused him to leave the NSW Police which had rendered him incapable of working as a police prosecutor. How much of the what the plaintiff told Dr Westmore is true, I do not know. One might be forgiven for thinking that he put a subjective slant in his favour in his narrative of events.
Dr Westmore formed the view that the plaintiff was suffering from a depressive illness, and that his diagnosis was of a major depression, with a differential diagnosis of an adjustment disorder with depressed mood. It is clear that the doctor attributed those diagnoses to the stress under which the plaintiff felt at the time the plaintiff misconducted himself as a magistrate. The plaintiff asked Dr Westmore to certify him unfit. However, Dr Westmore could not do so because the plaintiff had been sent to see him by Mr Greg Walsh, a solicitor whom the plaintiff had retained for the purposes of dealing with the report that had been made to the Judicial Commission. Dr Westmore sent the plaintiff to see Dr Klug on the following day.
Dr Klug expressed this opinion:
"Mr Day presented in a profoundly depressed fashion. I believe he is suffering from a major depressive disorder. This is a major mood disturbance, which bears a high statistical relationship to increased levels of morbidity and mortality by suicide.
I suspect that Mr Day has had depressive symptoms for an extended period. Whether he already had such symptoms on September 12, 2001 is difficult to know, but he was considerably stressed, and probably overreactive on that day. I understand there had been ongoing marital difficulties in the context of infertility. Three to four days prior to September 12 his wife had threatened to leave the marriage, and subsequently did so, approximately six weeks later. He also felt emotionally affected by the events of September 11.
His mental state has deteriorated since that time. His symptomatology is severe enough at present to warrant concern about suicidality. Although he is not voicing suicidal ideation or intent. However, he feels isolated and unsupported."
A little later, Dr Klug expressed the view that the plaintiff was not fit to provide instructions or to advise counsel, and was not fit to appear before a Conduct Division of the Judicial Commission. For that purpose, the plaintiff was sent by the assistant Crown solicitor to see yet another forensic psychiatrist, Dr Rod Milton.
ADJOURNED TO TUESDAY 14 JULY 2020
The plaintiff was examined for two hours by Dr Rod Milton on 2 July 2002. Dr Milton was briefed with a number of documents which are on a list attached to his report. Significantly, one of them was a letter from Mr Timothy Heenan, a solicitor, to the Judicial Commission dated 27 December 2001 which, as I understand it, was the complaint about the plaintiff's conduct displayed on 12 and 13 September 2001. There was also a statutory declaration from him made on 22 January 2002. There was an initial complaint - a document generated by the Judicial Commission - to commence the Conduct Division hearing, and a further complaint dated 28 June 2002 that the Conduct Division ordered be examined pursuant to s 31 of the Judicial Officers Act 1986. That appears to have been supported by statements of Ms Elizabeth Walker dated 18 June 2002 and Mr Anthony Robinson dated 18 June 2002, and as I understand it those were the two persons involved in the interaction between the plaintiff and those at the Christmas party at the end of 2001. Dr Milton was also provided with a medical certificate that was issued by Dr Klug on 27 June 2002 which has not made its way into evidence before me.
The second paragraph of Dr Milton's report confirms that Mr Heenan, a solicitor, made a formal complaint about the plaintiff's behaviour as a Magistrate sitting in the Local Court at Burwood. Dr Milton notes that the complaint was classified as serious and was referred to a Conduct Division of the Judicial Commission. Dr Milton noted that the Conduct Division was due to conduct a hearing between 15 to 19 July 2002. There is evidence that the Conduct Division comprised the Honourable Alan Abadee QC, a recently retired Supreme Court judge, Price DCJ (as his Honour then was), and Gilmore LCM, a senior member of the Magistrates' Bench.
Dr Milton took a history that the plaintiff had been a magistrate for about a month at the time of events leading to the solicitor's complaint. Prior to that he recorded that the plaintiff had worked as a police prosecutor "for a number of years" then as a solicitor with the ALS. The doctor's report then says this:
"There were some domestic problems, and he dated these from when he moved to Sydney. His wife was unhappy in Sydney - she had grown up in the country, and previously they had resided in country towns. About the time of the events leading to the complaint she indicated she was going to leave him, and did so in November 2001."
Each of Dr Westmore and Dr Klug took a similar history about the plaintiff's domestic problems. Dr Milton recorded that despite the separation from his wife in November 2001 the plaintiff continued to work until "recently". Dr Klug had recorded that the plaintiff saw a general practitioner on 14 June 2002 and was given a sickness certificate until 27 June 2002. The plaintiff told me that he thought that general practitioner was at Burwood. Dr Klug assessed the plaintiff on 27 June and clearly issued him the certificate dated 27 June certifying the plaintiff was unfit to work from 28 June onwards.
The next relevant part of Dr Milton's history is this:
"Mr Day told me that as a police officer he prosecuted major criminal offences, and prided himself on his conscientiousness, his attention to detail, and an awareness of the need to be fair as well as firm. He said that although police officers carrying out an investigation might provide him with certain information, he did not feel bound to follow their wishes in every respect, but to act in an independent manner, which in his view represented the best interests of the community.
He said that he left the police after reporting a major discrepancy in a financial matter. He was placed on the witness protection program for a while, and subsequently resigned because he perceived a major change in attitude to him from the Police Service administration.
When he joined Aboriginal Legal Aid as a solicitor, he approached that work in a committed manner, felt enthusiastic about it, and enjoyed the work. He practiced in different locations, eventually in Newcastle, which he and his wife liked.
In regards to the issues to do with the complaints, Mr Day said his reason for acting as he did was because he was concerned at the inexperience and apparent incompetence the police prosecutor. He indicated that somewhat similar circumstances had applied in his work as a police prosecutor, in which magistrates sometimes advised him as to the nature of the appropriate charges to be made.
He also felt, while acknowledging fault in himself, he did not consider the statements on which the claim was based to be an accurate representation what took place. He considered that in advising Sergeant Robinson to seek the advice of the DPP, he sought to improve the system, not to act improperly or to seek to undermine the defence.
Mr Day said that in his experience, magistrates had read police fact sheets, but were able to put aside anything prejudicial in them when hearing the case. He considered he was capable to doing that in relation to this issue in the complaint.
He said again that he felt the community was not being properly being served by the police prosecutor, Sergeant Robinson, and when he asked Sergeant Robinson to speak to him, he believed it was in the interests of the community. He felt that questions might be asked if the matter were not dealt with properly, and that he had some responsibility in that regard. This caused him to telephone Sergeant Robinson, which he now realises was wrong. He said, 'I did that out of nothing but stupidity, fear for the community'. He went on to say that he was concerned about the safety of children and, 'I couldn't sit by and watch this absolute injustice take place'.
On the other hand he had some reservations about making comments in open court. He had on occasion seen magistrates make comments to the defence in regards to whether they had given consideration to a possible plea of guilty. He felt this was improper and did not want to act that way.
Mr Day said there was a great deal of work to be done, and he did not find it easy, and the magistrate in charge of Burwood, where he worked, was busy, and did not seem able to provide the advice that would have helped Mr Day. He had some helpful discussions with another magistrate, Ms Judith Fleming."
Importantly, there was no history given by the plaintiff to Dr Milton of continuing symptoms of any psychiatric illness between his leaving the police force, and the events which occurred in September 2001. Later in his report, the plaintiff denied to Dr Milton any past or family history of emotional illness. In other words, he denied any emotional illness prior to September 2001. Dr Milton did not believe that the plaintiff was mentally ill. Under the heading "Mental health examination" Dr Milton recorded this;
"Mr Day spoke to me for two hours. He was cooperative, pleasant, neatly dressed and well kempt. His language was well ordered. There was no evidence of retardation of speech, thought or movement (as is common in depressive illness), and he showed no difficulty comprehending questions, or responding to them. He gave a detailed account of, and justification for, his reasons for his acting as he did, stating that what he did was not much different from what happened in his years as a police prosecutor. He stated his belief that his actions, though mistaken, were carried out in good faith in what he believed to be the public interest.
He did not show the poor self-esteem, guilt, and self-accusation commonly seen in depressed persons. He broke down from time to time, but that was to be expected given the situation and the issues we were discussing. I regard his tears as being within the range of normal emotion. On another occasions he cheered up a little, and was able to smile briefly."
Under the heading "Opinion" the doctor said this;
"Mr Day does not, in my view, suffer from any mental or emotional illness. The events in recent months were understandably distressing to him and had some mental and physical effects, but I believe they did not constitute a psychiatric disease (condition).
The doctor then gave some reasons supporting that opinion. He said:
"Mr Day felt troubled when he and his wife had difficulties in their relationship after coming to Sydney, especially while he was trying to establish himself in a new career. She told him about the middle of September she was going to leave him, and he was deeply distressed and could not understand why. He continued working and, indeed, went on doing so after she left in November 2001. He said that during this time he worked even harder because he used work as a distraction, going to work early and coming home late. He did not sleep well, went off his food, and lost weight.
Such a reaction is to be expected following the ending of a close relationship, in this instance their association having existed for eight years. It is part of the distress of normal existence to be upset following such events and it is usual under such circumstances to sleep badly, to lose weight, and to be preoccupied with separation from a loved companion. Mr Day was, however, able to continue working as a magistrate despite feeling troubled at the loss and feeling much loneliness. He went out with other women even though his heart was not in it. He apparently maintained proper standards of dress and organisation."
A little later in his report Dr Milton expressed this view:
"I suggest that it would be unwise for Mr Day to attend to magisterial duties while preparing for the hearing by the Conduct Division. He is in emotional turmoil of the imminent hearing and he should not try to work until the immediate issues have been resolved."
He went on to express the view that the plaintiff was capable of giving instructions and attending at a hearing before the Conduct Division.
[16]
Resignation from the Bench
The hearing before the Conduct Division went ahead. The plaintiff said so at T62.48. However, before the Conduct Division produced a report, the plaintiff resigned his commission as a magistrate. Exhibit QQ is a certificate of Dr Klug dated 24 July 2002. It says this;
"This is to certify that Mr Day is currently under my care. He is extremely stressed by his current circumstances and this, in the context of his recent major depressive illness, represents a serious threat to his mental stability. As his treating psychiatrist it is my advice to him to no longer attend the Judicial Commission on the grounds of poor mental health currently."
That appears to have been given after the hearing by the Conduct Division around the time that the plaintiff resigned his commission. At [151] of his affidavit of 25 May 2020 the plaintiff confirmed that he resigned his commission as a magistrate on 27 July 2002. There is reference elsewhere in the evidence of the hearing before the Conduct Division of the Judicial Commission being attended by media coverage which was unfavourable to the plaintiff, and that is wholly understandable.
[17]
Work as a solicitor
The plaintiff then went to stay with relatives in Newcastle. In 2003 he found work as a solicitor. He may have done other work prior to taking up that work. The parties put before me a Court Book which I read, but then a number of the documents contained in it were not tendered so I will ignore what I have read that has not been put in evidence. [152] of the plaintiff's affidavit is;
"In 2003 after an offer by a very kind man, John Marsden, I took up a position as a Manager of Criminal Practice of Marsdens Law Inc. John was an absolute life saver for me. He was kind and very professional and taught me a lot while I worked for him, that I still feel set me on a path to be able to manage my own small law firm."
In oral evidence the plaintiff told me that although practice rules prevented him from appearing in the Local Court for two years after he resigned his commission, he was given an exemption which would have permitted him to appear in the Local Court after only one year after his resignation but, if he did so, he had to make an open admission of what had occurred in the past, and he found that to be unsatisfactory. He therefore did not practice in the Local Court, but practiced in the Supreme Court, and in this Court. Indeed, the plaintiff could remember appearing before me when I was sitting in the Criminal Jurisdiction of this Court at Campbelltown on a sentence matter, but I have no recollection of that event. Suffice to say that it appears the plaintiff worked for Messrs Marsdens for about a year or more practicing in the Supreme Court and District Court, and running the criminal side of the practice of Messrs Marsdens, which in my experience was the greater part of that practice.
At [153] of his affidavit, the plaintiff told me that in 2004 he took up a position as General Manager and Solicitor Director of Intercept Law. Initially Intercept was set up as a training company but the plaintiff was talked into operating it as a legal practice. In exhibit 1, a download of the website of the plaintiff's current legal practice, he records that in 2004 he became the General Manager, and Solicitor Director of the Intercept Group Proprietary Limited trading as Intercept Law. The same exhibit tells me that between 2004 and 2011 he was the director of a training company, managing various aspects of a large private training organisation, also lecturing in legal matters to a number of persons, training in security, and other public oriented occupations. The same exhibit tells me that in 2014 after ten years, the plaintiff sold Intercept Law Proprietary Limited and then opened a new law firm called Absolve Legal at Wallsend, an outer western suburb of Newcastle.
The plaintiff still works as the principal of Absolve Legal, and describes himself in exhibit 1 as a Solicitor Director/Trial Advocate. As I understand it, the plaintiff's work as Intercept Law was successful and leading to his ability to sell the practice, and then to open another practice which obviously did not compete with the practice that he had sold. As I understand it, Intercept Law was based on the Central Coast at Tuggerah.
It is clear from exhibit 1 and other evidence, that the major thrust of the plaintiff's work between 2004 and the current time has been in criminal law. He clearly continued to interact with police prosecutors, and with police witnesses and does so to this day. The exhibit 1 is itself quite informative because it points out the plaintiff's extensive experience in the criminal law since he joined the police force as a probationary constable. Indeed exhibit 1 tells me that when working for Messrs Marsdens, the plaintiff was the manager of six legal offices maintained by that practice in Sydney.
[18]
Medical attendances from 2008
It is unclear from the evidence for how long the plaintiff stayed under the care of Dr Klug in 2002. There is no evidence that after he resigned his commission as a magistrate, he sought any medical or psychiatric care. The first suggestion of the plaintiff's seeking medical care after resigning his commission is exhibit RR a short referral letter from Dr Joel Asence of Tuggerah dated 18 February 2008 referring the plaintiff back to see Dr Peter Klug. The substance of the referral letter is this;
"I believe he was under your care some years back when he was and thence [sic] - after leaving the police force. Since he claimed he has been trying to cope as much as he could. But unfortunately, he had become angry and negative thoughts are getting into his system again. He is worried that things have started to affect him once more. For review, further assessment and advice on proper management."
The doctor then listed the plaintiff's then medications as being Nexium, a proprietary medicine for the treatment of gastric reflux, and Symbicort, a turbuhaler for dealing with respiratory systems. It recorded the plaintiff had an allergy to horses, and that allergy reflected itself in broncospasm, and one can link the prescription of the Symbicort to the need to treat the broncospasm. There is no reference in the referral letter that the plaintiff had been treated by Dr Asence for any psychiatric illness. However the plaintiff told me that Dr Asence had prescribed for him the drug Kalma which contains the active ingredient Alprazolam which is used to treat anxiety and panic attacks. The drug belongs to the group of medicines well known as benzodiazepines. The plaintiff told me that he had a bottle of Kalma pills, but he kept it in his motor vehicle, and vary rarely used the drug.
The plaintiff did see Dr Klug on 13 March 2008. The plaintiff told me that Dr Asence prescribed Kalma "around that time" which is of the time of the referral to Dr Klug, that is in 2008. He went on to tell me this at T85.01;
"I've still got the bottle that he prescribed me in my car, because it took me ten years to use it because I really don't like medication. So he definitely prescribed me Kalma at some point around that time..."
In his evidence, the plaintiff admitted that the reason he went back to see Dr Klug was because Mr Edmunds told him to do so. That can be found at T83.42. In other words, he merely saw Dr Asence to get the referral to Dr Klug because Mr Edmunds told him to do so. Dr Klug under the heading "Presenting complaint" tells me this;
"Mr Day confirmed that he is applying retrospectively for medical discharge from the NSW Police."
As I said yesterday, the plaintiff's application for medical discharge is dated 4 June 08, and was received by the defendant on 6 June 2008. As I pointed out yesterday, it was supported by statements of six witnesses, the report of Dr Westmore of 3 July 2002, the report of Peter Klug of 3 July 2002, the report of Dr Rod Milton of 4 July 2002, the certificate of Dr Miller which commenced the period of incapacity on 21 August 1998, and a certificate of Dr Whyte dated 23 July 1998. Dr Klug's report of 18 April 2008 following upon his examination of the plaintiff of 13 March 2008 was addressed to Baker & Edmunds, the firm at which Mr Tom Edmunds worked, and I assume that it was at some stage sent to the defendant to be included in the documents supporting the plaintiff's application under S10B(2).
Dr Klug before referring to the presenting complaint, pointed out that the plaintiff had been working as a solicitor on the Central Coast since 2004 in his own practice, and he specialized in criminal law. On this occasion, Dr Klug took a much more detailed history of the plaintiff's experiences in the NSW Police. It was at this time that plaintiff told Dr Klug that despite his resignation from the police force he continued to have a large number of symptoms which included marked hatred of the police, a phobic avoidance of his brother who was a police officer, and marked anxiety response to any contact with police or reminders of his police service, that sometimes progressed to agitation. A little further in the report of 18 April 2008 Dr Klug reported this:
"I note his history of increasing depressive symptoms from about 2001. He, nevertheless, had persistent anxiety-based symptoms from 1998 which have persisted to date. He continues to remain very preoccupied with the events that occurred leading to his resignation from the police and said he needs to consciously control himself on continuing contact with the police which is not infrequent, given that he works in criminal law.
It is of note that he saw no mental health professionals or assistance at around the time of his resignation, but said he now wished he had. "
I must point out that that history is quite inconsistent with the history that the plaintiff gave to Dr Klug when Dr Klug first examined him on 27 June 2002. There was no history of persisting symptoms of mental illness between the time of the plaintiff's resignation from the police force and seeing Dr Klug on 27 June 2002 when the history dated back only to events of September 2001, and in particular to the marital disharmony following upon the plaintiff's move to Sydney with his wife. I am at this stage not concerned with medical opinions, but with the facts. I will come back to Dr Klug's opinion later.
The plaintiff was sent by the defendant, though its agent, to Dr Graham Edwards, another psychiatrist. Dr Edwards examined the plaintiff on 10 March 2009. The relevant history recorded by Dr Edwards is this:
"He said there had been a build-up of mistrust and his feeling about dishonesty in the police force over a number of issues; but it was primarily related to the ramifications of when he reported 100 milligrams of amphetamine missing in a report he saw which eventually led to his resignation.
There have been a number of issues which arose after he reported the matter. He said there had been death threats made to his wife. He had been shunned by other police. He felt every policeman going by was thinking, 'you dog'. Because he implicated a number of the police involved, he felt some police and the Coffs Harbour prosecutor had 'poisoned the water'. He was feeling extremely lonely and paranoid. (He was quite agitated and quite distressed when recounting these details.) He said the Police Integrity Commission visited over a period of about six weeks. Then he had to decide whether he would get out as he was not coping with being at work.
He was put in a Witness Protection Programme because they were concerned for him and his family's safety after his whistleblower activities. He was asked to report any strange activities, any victimization or phone calls during this period. There was one episode when another policeman shot a dog in front of him and then ran off, and he reports being stunned and in a state of terror. He does not know whether the incident was a threat or otherwise.
During this period he experienced a number of psychological symptoms. These consistent of dizziness, sweating, not sleeping, fearful of going to a police station, always feeling revved up, fearful, shaking and nauseous, apprehensive. His wife mainly handled the phone calls and he was fearful of his wife receiving more death threats. He was generally apprehensive about those calls or other calls such as 'watch your back'. He had fluctuating moods with depression and some excess drinking, often to the point where he could not recall events, general intense distrust and anger and episodes of panic. When he resigned, he resigned quickly and went virtually straightaway to live at Taree."
One must note that the Police Integrity Commission did not exist back in 1998. That is a reference to Internal Affairs. One must also note the gloss put on the shooting of the dog by Constable Michael Moss. There is no contemporaneous evidence, and by that I mean the closest statement of the fact, being a statement made by his wife by Belinda in 2007 of the plaintiff's experiencing terror at the dogs being shot, nor was there any suggestion that at that time that it had anything to do with the circumstances in which the plaintiff found himself on 14 August 1998. Rather, it was fortuitous. The impact upon the plaintiff was that he made a complaint and some members of the force may have believed that he ought not had done so because that was 'dobbing in a mate'. What the plaintiff told Dr Edwards about the Michael Moss dog shooting is clearly a gloss favourable to the plaintiff himself. Dr Edwards then obtained a history of the plaintiff's then Mental Symptoms. Then he took a history of Psychological Treatments. It is this;
"Although he has had psychiatric assessments, he has had no follow up psychological or psychiatric treatments. He does take the minor tranquiliser, Kalma, one a day prescribed by his general practitioner. There is no past psychiatric treatment prior to 1998."
The history about the plaintiff's difficulties as a magistrate is contained in the 'Personal and Work History' recorded by Dr Edwards. It is this;
"After he left the Police Force, he was off work for eight weeks, then joined the Aboriginal Mental [sic] Services as a solicitor. (During his police career he had passed the solicitor's administration board examinations whilst a police prosecutor). He left in 2001 then worked as the Magistrates Bench for a period. He said he did not cope particularly well there. He felt his cynicism, anxiety and anger may have led to him at times making at least mildly inappropriate decisions, so he left. He then went to Marsdens at Campbelltown for twelve months, then bought into a training company, training security guards and cleaners, but then left there for a period and returned as a solicitor in that training company fulltime. He said he is quite diligent in his work."
That is a complete downplaying of what occurred in 2001 and 2002. There is no reference to the plaintiff's misconduct, no reference to his referral to a Conduct Division of the Judicial Commission, no reference to a public hearing causing media coverage of a critical nature, no mention of the plaintiff's needing psychiatric treatment from Dr Klug, no mention of Dr Klug's opinions regarding the plaintiff's condition at that time.
Dr Edwards diagnosed a generalised anxiety disorder with depressive features, which he thought existed at the time the plaintiff left the NSW Police, but the plaintiff's then condition was somewhat different; it was a generalised anxiety disorder with depressive features. But if I read his report fairly, it appears that he was of the opinion that the two diagnosis were related, that the latter flowed from the former.
Yesterday I mentioned that when the plaintiff notified a dispute with the defendant, it was to be referred to the defendant's Disputes Committee. An opinion was obtained from Dr Antony Christie. Dr Christie did not examine the plaintiff. Dr Christie is an occupational physician who for many years was a Chief Medical Officer for the Government Insurance Office, in the good old days of third party insurance. Dr Christie commented that this was, 'A very complex psychiatric case', and expressed this view;
"I believe this case should be referred to a psychiatrist, as to a non-psychiatrist like myself, it appears that some of the medical reports on file may have an adversarial content."
He recommended that Dr Joseph Dunn be retained. In any event, the defendant had done so. Dr Dunn, like Dr Christie, did not examine the plaintiff, but merely based his opinion on the report of Dr Christie, the certificate of Dr Robert Miller, the general practitioner at Lismore, the report of Dr Westmore dated 3 July 2002, the report of Dr Klug dated 3 July 2002, the report of Dr Rod Milton of 4 July 2002 and Dr Klug's opinion of 18 April 2008. Dr Dunn also commented on the report of Dr Edwards of 13 March 2009.
Dr Dunn expressed this view;
"This is an odd case. I think that the information being presented has been controlled quite carefully by the patient, this being a reflection of his own personality.
The psychiatric reports are, unfortunately, something of a debacle.
Dr Klug portrayed the patient as having a severe major depression but, when assessed with in only a period of days by Dr Milton, the opinion of the second psychiatrist was there was no psychiatric diagnosis and that the patient's emotional expression was "within the range of normal emotion." The picture that the patient gave to Dr Klug when he had a barrow to push in 2002 was very different from the emphasis he gave to Dr Klug in 2008. The time frame expressed by Dr Klug in 2002 suggested that "it would be difficult to know" what symptoms the patient had at the time he left the police force but Dr Klug's second report was far more decisive in its opinion. I think that the patient controlled the content of these reports to such an extent that he has damaged his own credibility. It could be argued, of course, that patients with
post-traumatic stress disorder frequently suppress and repress their emotional state and are reticent to talk about it. In, my opinion, this argument would be quite unconvincing in this case.
The statements made by friends and loved ones were rather more convincing. It must be remembered, however, that these were obviously coloured by the personal relationships the patient had with each of the writers, all of the opinions were given in retrospect (going back nearly a decade) and, of course, none of them actually contained a true medical diagnosis.
In view of the various discrepancies and different perspectives provided in the reports and in view of my perception of the patient's personality, it would be my overall impression that the patient left the police Force while angry and disillusioned. There was a recurrent influence of his personality, which is obsessional and moralistic to the point of probably being quite self-righteous. I do not believe any of the reports are persuasive or constant enough to convince me that the patient was diagnosable with a psychiatric disorder at the time he left the police force. To be angry and demoralised is not necessarily tantamount to a psychiatric diagnosis.
I therefore think that, on the balance of probabilities, the patient was not psychiatrically unfit for work at the time he left the police force but, rather, this was his choice and a natural progression in his career."
In 2016 Mr Gray retained Dr Bertucen to provide an opinion. The opinion which Dr Bertucen provided was in direct response to the instruction given to him in Mr Gray's letter. That instruction is this;
"Mr Day instructs us to make a claim pursuant to s 10B(2) for a Retrospective Medical Discharge in relation to being incapacitated for his employment with the NSW Police Force on his last day of employment."
I shall have more to say about that formulation of the legal test which I must apply. By the time Dr Bertucen saw the plaintiff, he had married a second time, a lady called Gabrielle. The plaintiff and Gabrielle had three children who were aged 11, eight and five as at 16 August 2016. However, the plaintiff and Gabrielle had separated in 2013. However, their relationship remained amicable and Gabrielle was still working for the plaintiff as his personal assistant at the practice at Wallsend. As I understand it, that position remains to this date.
Dr Bertucen obtained a history that the plaintiff was working as a solicitor in Newcastle and devoted at least 50 hours per week to his practice. Dr Bertucen recorded that the plaintiff had a somewhat rigid and inflexible sense of moral rectitude. That lead to his being unable throughout his life to "accommodate" comprise between right and wrong. The plaintiff told the doctor that he hated injustice and bullies. It was to Dr Bertucen that the plaintiff complained of bastardisation at the Duntroon Military Academy.
The relevant part of Dr Bertucen's history is this;
"In February 1998, Mr Day was subject to a significant professional stressor in that a drug matter he was working on revealed a discrepancy in the amount of a drug that was in evidence. In effect it appeared that there were 100 grams of amphetamines missing. Mr Day was horrified by this development and became significantly anxious and agitated at home. He approached various police officers concerned with the case, 'because he did not want to look like an idiot in court if the discrepancy in the amount was raised as an issue'. (Belinda Day, October 2007). However, the response from the officers concerned was allegedly dismissive or even hostile. Nonetheless, Mr Day felt that he had no option, but to report the discrepancy to superior management and according to Belinda Day, 'from then all hell broke loose'.
Effectively this reporting meant that from mid-1998 Mr Day was regarded as 'persona non-grata' by many police within Lismore and Coffs Harbour. In June 1998 he experienced a bizarre situation whereby he was apparently knocked unconscious and assaulted (despite being with colleagues at a race meeting in Coffs harbour) and the next morning had bruises on his body, chest and back, but nothing on his face. He had no memory of how this happened, and no proof, but believes the drink may have been spiked. Mr Day was also experiencing, not only ostracism, but active abuse from a number of police colleagues at Coffs Harbour who refer to him as a 'pig' or a 'dog', or made comments such as 'we do not talk to squealers'. Former police friends distanced themselves from him, and many cases cut off contact altogether."
I interpolate at this time that the plaintiff gave no evidence about the event of June 1998 at the Coffs Harbour race meeting. That material about that, obviously hearsay, was contained in the evidence of Belinda, but it was successfully objected to by Mr Ower for the defendant. However, at the time I rejected the tender of that piece of evidence, I was unaware that there was a medical history about it. Under the Evidence Act, a medical history is some evidence of the relevant fact. It is interesting as to why the plaintiff gave me no evidence about this event. It appears to me that that is because it shows an inconsistency. Here in June 1998, the plaintiff was attending a social event, a race meeting at Coffs Harbour and taking food and alcohol with work colleagues from Coffs Harbour, at a time when I am asked to believe that he was actively being ostracised by the police at Coffs Harbour.
I return now to Dr Bertucen's history;
"In July 1998, approximately, Mr Day and Belinda were visited at home by officers from the Internal Witness Security Program. They informed the couple that they would be becoming under the protection of the program, although were unprepared to disclose the reasons why. The lack of transparency (as well as the patent lack of actual protection) caused a great deal of anxiety and distress for both Mr Day and Belinda. Over the next few months (despite being allegedly under the protection of the program) the couple regularly received abusive or menacing phone calls in the middle of the night, sometimes with silence, and Belinda Day found herself approached in local venues by unknown people, who appeared to know that she was Mr Day's wife.
She stated within her personal file that when Mr Day was away, she frequently slept with weapons, or even knives under her pillow. Ms Day stated, 'We did not report the calls because we did not know who to tell'. Over the second half of 1998, Mr Day's emotional state became even more fragile, and he began to experience a number of symptoms of depression and anxiety at a clinical level (see below). He also began to develop a bitterness and even hatred towards the police service. At one point yelled at his brother, Whayne, (also a police officer) to 'Fuck off out of my house and take off that uniform before you ever come back'.
For at least three or four months the couple were constantly bombarded by midnight telephone calls, and in August 1998, Mr Day had a conversation with the close friend, Nick Moir, (another police prosecutor and a rare ongoing supporter) about joining the ALS. He mentioned it to Mr Day that there is a job going with the ALS in Taree. Mr [Day] gave this idea some very serious consideration, although as he stated before the beginning of 1998, he would never have seriously contemplated leaving the Police Force.
On 21 August 1998, Mr Day consulted his local GP, Dr Robert Miller, and was certified as incapable of returning to work for the next month.
As the date for return to work approached (18 September 1998) Mr Day still felt too agitated and nervous to make a return to work, and decided to resign and accept the offer with the ALS in Taree. His level of anxiety and paranoia was such that he had to rely on his brother, Whayne, to go into the police station and clear out his locker. There was no further return to the police force in any capacity after 21 August 1998. He resigned on 26 September 1998."
I interpolate at this stage that the plaintiff had been advised by Superintendent Wadsworth on 13 August 1998 that he was placing the plaintiff on the Internal Witness Protection Program. Therefore the visit by gentlemen from the Internal Affairs/Internal Witness Protection Program should not have come as any shock to the plaintiff. Furthermore, the plaintiff well knew what his being placed on the internal witness protection program was about; it was about his complaint to Internal Affairs about the drug discrepancy. Again, the history contains glosses which do not stand analysis.
Under the heading 'Psychological sequelae', Dr Bertucen makes a number of points. He said this;
"Mr Miller apparently prescribed Mr Day benzodiazepines which he used for several months, but no antidepressants or other specialised psychiatric pharmacotherapy."
That is untrue. Dr Miller prescribed the plaintiff nothing. That can be found at T53.29. The plaintiff did use Valium, but he obtained that from his mother and used it for some two months, as I pointed out yesterday, probably in November and December 1998.
Dr Bertucen also was also told by the plaintiff the when he was working for the ALS, he continued to suffer from anxiety attacks, 'as he was in frequent contact with the police'. Nevertheless, there was no treatment for that, at least commencing in 1999. Dr Bertucen's history then says this;
"For the next few years, admittedly, Mr Day sought to 'target' police as a solicitor within the ALS owing to a deep-seated feeling of having fallen foul of corrupt police within the NSWPF, persecuted and effectively hounded out of a career which he cherished."
If that were his attitude, it appears to me to be difficult to comprehend how he worked so effectively with the ALS, and was able to persuade the Chief Magistrate and the Attorney General of this state and the Cabinet to appoint him to the position of a magistrate.
Dr Bertucen expressed the opinion that the plaintiff was incapacitated for his employment with the New South Wales Police Force on his last day of service, as a result of psychological injury. On the last page of his report he said this;
"Mr Day's behaviour over the last eight to ten years has not, in my opinion, been consistent with that of a man suffering from a long-term psychological injury. While from the documentation it appears that Mr Day has suffered fluctuating symptoms of depressed mood and anxiety related to his exit from the police over the ensuing two to three years at least, I do not consider that Mr Day's recent behaviour is indicative of a psychological illness."
Significantly Dr Bertucen at no time took a history of the plaintiff's difficulties which arose as a result of his misconduct as a Magistrate, nor the need for psychiatric treatment by Dr Klug at that time. I note however that Mr Gray did provide him with reports of Dr Klug, Dr Edwards, Dr Westmore, and Dr Snowdon, and various witness statements.
If the plaintiff's behaviour over the ten years preceding 2016, were inconsistent with the plaintiff's having any psychological illness, then one must ask the question whether his behaviour between the commencement of 1999 and the ending of the two or three years after he left the police force, that is in September 2011, is indicative of his having a psychiatric illness. It appears to me to be in the same category as his behaviour from 2004 onwards. Furthermore, Dr Bertucen does not make any comment whatever about the illness that the plaintiff developed in 2011/2012 for which he came under the care of Dr Klug, nor the opinion of the doctors who saw him at the time, Dr Westmore, Dr Klug and Dr Milton.
Mr Gray also again qualified Dr Westmore. It was not of course Mr Gray who qualified Dr Westmore originally, but the solicitor acting for the plaintiff in his dealings with the Judicial Commission, Mr Greg Walsh. Dr Westmore generated a further report dated 3 January 2017 following upon his examination on 29 November 2016. At the foot of the first page of his report, Dr Westmore said this; "I have included Mr Day's history in this report as he delivered it". It is clear that the history that the doctor recorded was that he delivered on 29 November 2016, rather than the history that he gave on 26 June 2002.
The further history of that Dr Westmore recorded is this:
"He said, since I last examined him, he had resigned from his position as a magistrate in Sydney. He said, he then moved back to live with his brother and sister-in-law in Newcastle.
He continued and said, 'where I spent seven or eight months trying to get over the ordeal. I was looking for work'.
He said, he received an offer to work in a criminal law firm in Campbelltown [Messers Marsdens] and he did that work for about 12 months before opening his own office as a lawyer. He continues to work as a lawyer. He said, around that time he got married again and over the next ten years, he had three children.
Mr Day said, his second wife left him around 2012, they now have an amicable relationship, as he does with his first wife. He said, 'but in the end, I think I drove her mad. It's my obsessive-compulsive thoughts towards the police. Since then, I've been single. I see my children occasionally and work'.
He continued, 'I took a different attitude towards the bench after what happened to me. It gets to me that it has affected me for such a long time. When I left the police service, I was on witness protection and a doctor put me off on stress leave and put me on medication'."
I interpolate that the last statement is untrue, compared to the evidence that I quoted earlier today. I return to the doctor's history:
"Mr Day then stated that he worked with the ALS for a few years before working as a magistrate. He said, 'I had difficulties dealing with police officers all those years, to the point it makes me ill'. He said he now does not take on cases where he has to have face to face contact with police officers. He said, 'I can't, there is too much anxiety. I can remember when I tried to take those cases on. There was so much anxiety and I would have panic attacks and my heart would race. I got over it by deciding that I was not taking on cases where it is alleged by my client that the police have been violent or done other things, because I take it on personally and I can't be objective for my client. That has affected me for years and it has affected my work'.
Mr Day said, he currently works in criminal law, but he does easy cases with guilty pleas and with a counsel. He said, 'because that is the only way I can do what I do. I know I left the police at a time when I thought I was being affected by corrupt police officers. It led to the destruction of my first marriage and possibly played a role in the ending of my second marriage'.
He said, after he saw me in 2002, he went to the Judicial Commission. He said, after the hearing and before any order had been made, he decided to withdraw from the position as a magistrate. He said, 'I thought it was better for my health and that is when I moved back with my brother.'"
I have grave difficulty in accepting the antepenultimate paragraph of what I have just quoted. He appears to me, to be extremely implausible, that working for the ALS, from November 1998 until his appointment to the bench and then working constantly in criminal law, from 2003 to date, he has not taken on any case where he had face to face contact with a police officer. Most work in the Local Court, he would be confronted by a police prosecutor, a job that he himself had before. What the plaintiff says, in the antepenultimate paragraph is, in my view, extremely implausible.
Further on in the report, Dr Westmore said this:
"Mr Day went on to state that he has to work as he is currently working, but it is associated with significant anxiety and stress. He said he wants to get access to a superannuation scheme, so he can get more financial support. He said, '(I) can't work at full capacity because of the problems I have with police officers and the police force. I'm not objective enough. It (my condition) stops me from doing jobs and stops me earning money to my full capacity'.
He said he was working up to 12 hours a day, five days a week and, 'I haven't had a holiday for ten years'."
In short, the plaintiff told Dr Westmore that he is working for up to 60 hours per week, whilst Dr Bertucen has it as 50 hours per week. Again, much of that appears to me, to be implausible. The plaintiff holds himself out as an expert in criminal law. That is his forte. If working in criminal law exposes him to working with the police, which it obviously does, one would think that he would seek to avoid that by taking up some other metier in the law such as conveyancing or personal injury litigation. Many ex-police officers become very good at personal injury litigation. One person that readily springs to mind is the late Judge Frederick Kirkham who had an extensive practice in the Compensation Court of New South Wales before being appointed to the Bench of this Court. There is no suggestion that that the plaintiff has sought to diversify his practice or to find work outside the law. He continues to press on with a criminal law, and it would appear from the number of hours he works he does so quite successfully. If he only takes on limited work - say, guilty pleas - it is hard to see how he would be working up to 60 hours per week.
The only other medical evidence before me is a further report Dr Joseph Dunn dated 3 May 2018. Again, Dr Dunn did not examine the plaintiff or interview him, but made a further report based upon his earlier report and the further reports that had been generated since that time. He makes summary of the opinion of Dr Peter Snowdon in a report which he says is dated 21st of the 21st 2009, but that is obviously a date that does not exist. However, it is common ground that there was a report from Dr Snowdon. Originally it was contained in the tender bundle, but neither the plaintiff tendered it nor did the defendant; and it would appear that the doctor generated a second report which has caused the defendant not to tender the first report. I, according, leave Dr Snowdon's opinion to one side. However, Dr Dunn does comment on the further report of Dr Westmore. At the foot of p 6 of his second report, Dr Dunn commences with this:
"On p 6, Dr Westmore went on to extrapolate backwards in time again by declaring that when the patient left the police force in 1998 he had been incapacited with major depression. Indeed, Dr Westmore claimed that he had held an advantage over the independent psychiatrist, Dr Bertucen, who had seen the patient in 2016. Dr Westmore may have glossed over, the observation that when he first saw the patient in 2002 there had been four years that had elapsed since the patient left the police.
When I originally reviewed this claim in 2009 I pointed out that, on the basis of the medical information at hand, I could not find any evidence that the patient was incapacitated by any psychiatric diagnosis when he left the police force on 26 September 1998. I was interested to read the more recent input for Drs Snowdon and Westmore. I do not think, however, that any of that information changes my original perspective. In particular:
• The patient did not consult any psychiatrist in either an independent or treating capacity for four years after he left the police force. Every psychiatrist has assessed the patient since has, therefore, been in the unenviable situation of having to extrapolate retrospectively and hypothesise on whether a diagnosis had applied four years (and sometimes up to 16 years) earlier. Such a statement would, therefore, by definition be speculative.
• To make matters worse, all (or nearly all) of the patient's presentations have been within the context of a medico-legal assessment. I have already questioned whether the patient may have, in fact, consulted Dr Klug with a more prominent intention of obtaining his medico-legal input rather than receiving and cooperating with treatment.
• I have already pointed out the various aspects of the patient's history that seemed to be inconsistent or quite frankly incredible.
• I agreed with Dr Snowdon's perspective that the history that the patient provided to Dr Klug seemed to change significantly between 2002 and 2008. In the latter report the patient wanted to portray a situation whereby he was incapacitated in 1998 but when Dr Klug saw him for the first time in 2002 their focus was much more on the patient's emotional response to the unfortunate incidents that derived from his work as a magistrate.
• What most of the medico-legal report writers have also ignored has been the observation that the patient has worked on full-time basis and at a very high professional level ever since he left the police force. Indeed, it would seem that he may well have transitioned into a new professional role within a couple of months of leaving the police."
As to the second point made by Dr Dunn, I am unable to accept that the plaintiff saw Dr Klug on 27 June 2002 for medico-legal reasons. It is clear from Dr Westmore's report that the plaintiff asked Dr Westmore to take over his treatment but the doctor was ethically bound not to do so, and it was he who referred the plaintiff to Dr Klug who saw him on the following day and issued a certificate that found its way to the Crown solicitor and I assume the Judicial Commission's Conduct Division, albeit that it has not found its way in evidence before me. It is true that Dr Klug did produce a medico-legal report to Greg Walsh and Co but that was prompted by that firm's letter to him of 28 June 2002, a letter written on the day after he saw the plaintiff.
As to Dr Dunn's fourth point, I of course ignore Dr Snowden's view but I have already pointed out that there was a significant change in the history reported by Dr Klug between his reports of 2002 and his report of 2008. As to Dr Dunn's final point, it seems to me that in essence he made an observation that had been earlier made by Dr Bertucen who was qualified on behalf of the plaintiff. On the subject of Dr Snowden's views, the plaintiff submitted that the failure of the defendant to tender his report(s) or to call him might be of some assistance to the plaintiff. However the correct view is that the lack of evidence from him does not support the defendant's case which rests, positively on Dr Dunn's opinion and Dr Milton, and to some extent on the inconsistencies in the plaintiff's case. I have accordingly ignored anything which hints at Dr Snowden's view(s).
[19]
Some facts about events in 2001
I return to an analysis of the facts that gave rise to the plaintiff's difficulties as a magistrate. They are, in my view, instructive. The plaintiff appears not to have wanted to raise in open court the problem that he perceived the charge being pursued by the police prosecutor. The charge was of personating a police officer by producing to two girls a badge which was said to be a police badge. However, the plaintiff was concerned that this represented predatory sexual behaviour on the part of the accused. It is difficult to know why the plaintiff did not raise it in open court. One view of it is that he did not wish to embarrass the police prosecutor by criticising him in open court. Nevertheless, he conferred privately with the police prosecutor and gave him advice as to what he ought to do. Nevertheless, I am asked to accept that the plaintiff had some form of phobia interacting with members of the police force and did his best to avoid any such interaction. The prosecutor was Sergeant Robinson, obviously a member of the NSW Police as would have been known to the plaintiff because the sergeant would have announced his position when announcing his appearance.
The plaintiff placed himself in the same position as the prosecutor, giving him advice, telling him what to do. This eventually led to his having to disclose openly what had happened and that led to his disqualifying himself from a further hearing of the matter. His conduct led to the solicitor's complaint to the Judicial Commission which led to the hearing before the Conduct Division which led to the plaintiff's resignation. The train of events speaks of a person who was not phobic or avoidant of the police, who was not bearing any animus towards the police force or the police prosecutor.
Thereafter the plaintiff appears to have sought to blame Sergeant Robinson whom he called a liar at the Christmas party. I assume that the statement of Mr Anthony Robinson of 18 June 2002 was a statement made by Sergeant Robinson and that was the subject of the second complaint dealt with by the Conduct Division.
[20]
Inconsistencies
The plaintiff's behaviour was inconsistent with the medical case he now seeks to put before me, just like the visit to the race track at Coffs Harbour would appear to be inconsistent with what I am now asked to accept. The glaring improbability in my view is the difference between the histories given by the plaintiff about his psychiatric illness in 2002 and the histories which he commenced to give in 2008 when he saw Dr Klug for a second time on 13 March 2008, when he was seeking to pursue a police pension.
The learned counsel for the plaintiff submitted to me both in writing and orally that there was no challenge to the credibility of the plaintiff. With the utmost respect the case was quite to the contrary. To add to the obvious implausibility is the fact that the plaintiff admitted that much of his reasoning was ex post facto and the plaintiff, through his counsel, adduced evidence from Mr Nick Moir, "Roland's memory is destroyed, in my opinion." Mr Moir went on to say that he had been briefed by the plaintiff to appear in court, but then the plaintiff turned up to represent his client himself because he had forgotten that he had retained counsel. Mr Moir said that if there were inconsistencies between his memory and that of the plaintiff, he would back his own. He said that this position had persisted 'for a long time'.
Nevertheless a few questions later in cross-examination, he admitted that the plaintiff was very effective when he is working with the ALS. The witness replied to that with the word, 'absolutely'. Using the vernacular, this question and answer were then given;
"Q. I mean, you say he was effective; you say he killed it.
A. Absolutely."
Perhaps the most telling piece of evidence is what the plaintiff admitted about reconstruction. Commencing at 25.21 this evidence was given in cross-examination;
"Q. Sir, I appreciate that at the time you affirmed this affidavit, it was many years after you had been in the police force, and you found some things difficult to remember. is that correct?
A. Yes. I think we utilised some of the records that we had over time since 2007.
Q. The number of places in your affidavit, you refer to reflecting upon past events?
A. Yes.
Q. Giving your analysis, as it were, of those past events with the benefit of hindsight. Is that right?
A. With .. the benefit of being a better person. Yes, I think that's right.
Q. Indeed.
A. Or more experienced say. As time goes on you can reflect back based on experience, and seeing that you could have improved things, that's for sure.
Q. When you use those words, don't you, in hindsight, on reflection, a number of times?
A. I have used those words, yes.
Q. In paragraph 73 of your affidavit ... it refers to a situation that was happening in 1995, 1996 and that your views, and I take it that's your opinion on certain things, were 'hardening up'. Do you see that?
A. I think that was at the time when the Wood Royal Commission loomed large for me at that time, and I was taking particular notice of aspects of corruption that I was hearing about, and that's how that paragraph evolved to me paying particular attention to things that were concerning me. And I guess with that, a little bit of suspicion, which ...
Q. But in terms of what - thank you - have you finished?
A. I'm sorry. Sorry.
Q. In terms of your attitudes becoming harder--
A. Yes.
Q. --this is something you are commenting on, in hindsight. Correct?
A. Yes, that's correct.
Q. Indeed, at the end of the paragraph, you say, 'This evolved slowly, I did not recognise it at the time'.
A. That's - yeah, I--
Q. Is that correct?
A. Yes, that's correct.
Q. Yes. And so, it's the case isn't it, that at that ... time you didn't realise you were changing at all?
A. That's correct. I thought it was always just me.
Q. It's only with the benefit of hindsight, and in reflection, that you see that your behaviour was not as good as could have been?
A. Yeah. But it got worse and worse. That's right.
Q. Paragraph 76--
A. Yes.
Q. Your comment after--
A. Yes. Yeah, embarrassed - embarrassing.
Q. About your behaviour and you say, 'On reflection I had lost perspective and I was too emotionally involved in the argument'. That's looking back on it now, isn't it?
A. It is.
Q. And that wasn't what you thought at the time?
A. It wasn't.
Q. That's self-reflection that ... has occupied your mind in recent years as really since the time you had as a magistrate. Isn't that's right?
A. I think that would be correct.
Q. Indeed, you mention in paragraph 76, 'Now, however on reflection some years later, after I'd reflected on my problems as a magistrate, I became increasingly aware of how awful and inappropriate my conduct was'.
A. Yes.
Q. And that's exactly how you feel now, isn't it?
A. Yes.
Q. But not how you felt then?
A. That's correct."
The evidence continued in this fashion concerning pars 80 and 83 and 84 of the plaintiff's affidavit.
LUNCHEON ADJOURNMENT
Before the adjournment I quoted evidence about the plaintiff's admissions about reconstruction of evidence. Perhaps the best evidence to consider is based on the cross-examination the plaintiff on the history recorded by Dr Klug when he examined the plaintiff on 27 June 2002. That cross-examination commences at T79.31. At the top of T80 the plaintiff misunderstood a question put. I then asked the plaintiff about same piece of evidence. The cross-examination then resumed by Mr Ower at T81.12. It is this;
"Q. So, apart from the marital stressor that his Honour has just asked you about, you will see on that page the doctor sets out what you tell him about the problems that you are having that led to the Judicial Commission inquiry. Correct?
A. Thank you.
Q. Yes?
A. I agree with you, yes.
Q. He then concludes at point 6 - if I could just take you to that..
A. What page again?
Q. 'Mr Day described feeling' - this is page 258 [ of the court book].
A. 258, thank you.
Q. 'Mr Day described feeling that his life had been destroyed by these events, and by the breakup of the relationship with his wife, who has returned to Newcastle'.
A. Yes.
Q. And that is accurate, is it?
A. I think it was, yes.
Q. After that follows a whole list of symptoms that you were feeling.
A. Yes.
Q. There was no attempt by you to give the impression that those symptoms you had had before these events took place, was there?
A. No, there was nothing there.
Q. On the following page, where at the top it says, 'Past psychiatric history', you tell the doctor about feeling stressed when you left the police service in 1997. Well, that is just a typo; it should be 98. But leave that to one side. You felt stressed. There is no explanation of what that means, but the doctor concludes, you will see from the sentence before, that there was no prior psychiatric history or anything to indicate a predisposition to depression. Now, the only reasonable explanation for that would be that you didn't tell Dr Klug anything about these troubles that you say you had before your resignation from the police force.
A. I was simply being asked about the events that led to me being before the doctor.
Q. No, you weren't. You were asked about what previous psychiatric symptoms you had. You understand that, don't you? The heading is past psychiatric history.
A. Yes, I understand what you're saying.
Q. So he would have asked you questions about that.
A. I would suspect that he would have.
Q. And you would have answered them truthfully?
A. I believe I would have, yes.
Q. The truthful answer is, nothing untoward was happening to you to make you incapacitated for police prosecution duties when you left the police force.
A. That is not true.
HIS HONOUR:
Q. Excuse me, Mr Day.
A. Yes.
Q. Go back to page 258, please.
A. Yes.
Q. You see that, as Mr Ower pointed out to you, there is a list of symptoms. Right?
A. Yes.
Q. You told the doctor that you had marked and pervasive depression. Correct?
A. Yes.
Q. Affecting your mood. You were moderately to severely--
A. I - sorry, your Honour, I didn't say those words. I take that that was the interpretation of what I was saying.
Q. Yes. But depression is a common word used by people in the community who have no medical expertise. Correct?
A. Now, I agree with you.
Q. Well, you must have known from your childhood you can talk about depression.
A. Yes, but I didn't understand, your Honour. I didn't understand.
Q. Well, lets go on. You told him that your sleep was moderately to severely disturbed?
A. Yes, that was true.
Q. You were preoccupied with the stressors that you were under at the time and you felt intense distress because - and then the doctor quotes you saying, 'by being portrayed as a rotten, sinister bastard, when that is as far from the truth as it gets'.
A. Yes.
Q. Then he also said that you also told him that you had moderate to severe loss of appetite.
A. Yes.
Q. You lost 15 kilograms?
A. Yes.
Q. You felt like life was futile, but you didn't feel that you were going to kill yourself?
A. Yes, that is true.
Q. You felt intense anger with the police prosecutor, who you believe has partially misrepresented the conversation you had with him. Correct?
A. At the time of this report, that is true.
Q. Yes.
A. I certainly changed my view of that.
Q. You see, you didn't tell Dr Klug that you had any of those symptoms after you left the police force.
A. Your Honour, I may not have, but I certainly did have problems when I left the police. So the whole reason I went down this path in 2007 is because I was concerned that I did what did because of what happened in the police, that I became - when I was on the Bench I was, I was the person that I became because of what happened in the police. That - that - I didn't understand it at the time, but it was later in reflecting on that…
Q. It is ex post facto rationalization.
A. Yes, that's right, your Honour. I'm sorry."
The plaintiff before me sought to blame his misconduct as a magistrate and the difficulties he got into because of what had happened to him in the police force. That is, rationalization, that is not what he believed at the time and he started putting it forward in or about 2008 in order to justify his attempt to obtain a police hurt on duty pension.
A further passage in which the plaintiff seeks to justify his misconduct as a magistrate by what happened to him in the police force can be found commencing at T56.01 and ending at T56.23 towards the end of which the plaintiff admitted doing the wrong thing as a magistrate which was highly embarrassing:
"But I later reflected back that I was unwell, at that time as much as I was absolutely didn't believe anything a police officer would say, and you say I could have represented police, I couldn't. I could not possibly represent police."
Clearly there was an attempt by the plaintiff to blame his experience in the police force, for what happened to him in 2001 and 2002, but that is not his position at that time. It is, again, ex post facto rationalization. The evidence before me, of a lay nature, is full of inconsistencies and implausibilities. I am unable to accept the plaintiff as a witness who is accurate or reliable.
[21]
Corroboration?
The plaintiff lays stress on the corroboration given to him by Belinda. That has caused me to pause in the finding that I have just made. However, there are implausibilities in what she says in a number of places. I have already pointed out from time to time some material which might be thought to be hyperbole on her part. A significant implausibility can be found in the following consecutive passages of Belinda's affidavit of 31 January 2020.
"145. I really vivid memory at Taree was that Roland started to think twice about deciding to represent people he thought were bad or guilty and he was very nervous about his first day. I recall him saying, 'You know what makes me more nervous than anything? It's walking into the police station to see clients. I don't know if I can do that. I'm really feeling it.'
146. When we were at Taree, I recall Roland coming back from work one time saying, 'I had to go to the police station to speak to clients. I could barely get in the door. I found it terrifying. My heart thumped and I got really anxious'.
147. When he got to court he said, 'I can't stand these blokes. I can't believe anything the police are saying'. It seemed to me that he would really struggle and he really went after the police. I think he was quite irrational in his attitude towards the police."
I can accept that that may have occurred initially when the plaintiff first moved to Taree, but I cannot accept that it was an ongoing problem. Amongst many other places, I have sat at Taree since 1994. I know that the police station was, until very recently at least, immediately behind the courthouse. The two buildings used the same driveway. It was but a walk of a minute between the courthouse and the police station. Many lawyers whose clients are in custody need to visit them in the cells at the station. It is impossible to accept that the plaintiff worked at Taree for the Aboriginal Legal Service for a period of 18 months, which represents the period from November 1998 to May 2000, without regularly visiting the Taree police station. It is also impossible to accept that even if initially the plaintiff was 'quite irrational' that he maintained that attitude throughout the whole of his period of employment with the ALS.
The next piece of implausible evidence from Belinda commences on the following page of her affidavit.
"153. To my observation, he was paranoid, irrational and there were times when he would talk and would just not make sense. It was like he was caught up in his own world.
154. I recall one day he came home and said he got an offer from the Chief Magistrate to be a magistrate. I did not know what to say. I did not want that as he was getting better, and even though he hated the police, we were talking more, and he was happier."
Then follows Belinda's recollection of the plaintiff's time as a magistrate.
She asked me to accept the time that he was appointed a magistrate, the plaintiff was paranoid, irrational and talking nonsense. I cannot accept that. It would be hard to see how the plaintiff would be asked by the Chief Magistrate to apply for a position as a magistrate if that was the way he was behaving. I cannot accept that the plaintiff would list the resident magistrate at Taree as a referee if that were the way he had been behaving in court when he was working at Taree. I cannot accept that he would have been appointed to the bench if he were paranoid, irrational and talking nonsense.
Again, I find it difficult to accept that Belinda opposed the plaintiff's being appointed to the bench. One of the complaints that she made about the plaintiff's resignation from the police force was the lack of income which his resignation caused, and a drop in status. [143] of her affidavit is this;
"I recall he started to get happier because someone rang and offered him a job and when we discussed it, and I asked about how much he would be paid. I recall him saying, 'I don't know', which I then knew he was trying to run away. I later found out we were dropping over $20,000 a year income to move away from the police employment. He was also going to lose out on many benefits and this would be, and was, a huge loss of income, and status."
Belinda and I may have moved in different circles, but I would have thought it would be more prestigious to say that "I am a solicitor" than to say that "I am a policeman". The point I am seeking to make is that if she was concerned with income and status, then the plaintiff's appointment to the Magistrates Bench would represent a major gain in status, and a major gain in income.
Furthermore, [154] of her affidavit, which I just quoted, speaks about the plaintiff's symptoms 'getting better', but there is no averment from the plaintiff to that effect, and quite frankly appears to be somewhat inconsistent with the other statements made by Belinda.
The relationship between the plaintiff and Belinda needs to be considered carefully. There was an age difference of about 11 years. When the plaintiff bought his house in 1996, despite the fact that he had been cohabiting with Belinda for some two years at the time, was bought in his own name, and not jointly or in common with Belinda. Belinda's evidence makes it clear that the decision to take the job at Taree and move to Taree was the plaintiff's and only his decision. She also makes it clear that the decision to resign his job as a sergeant of police was his decision and his decision alone. Likewise, the move to Newcastle was his decision and his decision alone, and the taking of the magistrates' appointment and the move to Sydney was his decision and his decision alone. Belinda's position appears to have been servient to that of the plaintiff and may reflect the difference in age.
When seen by Dr Westmore and Dr Klug in 2002 the plaintiff addressed the question of the breakdown of the marriage by saying that it related to the couple's infertility. However, that is not the position adopted by Belinda herself. After describing the events at the Burwood Local Court in September of 2011, Belinda said this:
"158 After that time, he deteriorated further as a magistrate and I thought he was suicidal.
159 After that, there were constant discussions about "rotten lying police and the mistrust and the over-charging and possible corruption never stopped."
160 I had to get away and I told him one day when he got home that I was leaving him. I had packed the car and waited for him to arrive home. I did not tell him where I was going. I just had to leave. That was so sad for me and he was very upset and crying and I am sure both of us felt very sick. It was not that I did not love him. I just could not stay any longer I had to leave for my own sanity. I really did not understand the whole thing. In the end as sad and awful as it was to leave and abandon him, I had to do it. He is not talking to me any way and I actually had a thought that my leaving him might help him find someone who will make him feel better."
Mr Moir and his then partner were visited by Belinda on her return to Newcastle following her separation from the plaintiff. It is clear from Mr Moir's oral evidence that Belinda came to see him and his wife on the day following her separation from the plaintiff. In his affidavit at [53] Mr Moir recorded that Belinda informed Mr Moir and his partner that "Roland had become aggressive, overbearing and controlling."
The plaintiff appears to have had little insight into his behaviour towards Belinda throughout the length of their relationship. Attributing the marital breakdown to infertility widely missed the mark. In any event, neither of them was infertile. Since finding at new partner Belinda has had a child and as I have already indicated, the plaintiff has begotten three children himself. There are so many consistencies between what the plaintiff says, and what Belinda herself has said, that one can only conclude that there must have been some interaction between them over the years discussing what had gone wrong in their relationship. They have been close friends. As Belinda said when she married the plaintiff, it felt like she was marrying her best friend. She left him at a time when the plaintiff was in the gravest difficulty in which he ever found himself. It appears to be likely that she regrets doing what she did, and like the plaintiff, with the benefit of hindsight, as led to support him in the claim that he puts before this Court. I am unable to accept Belinda as being accurate or reliable.
[22]
The plaintiff's personality
What does come through clearly, however, is the plaintiff's personality traits. That he is obsessive and compulsive, cannot be doubted. Many psychiatrists have told me over many many years from the witness box that to be a good judge, one must have obsessive compulsive personality traits. Personality traits, of course, are different to a disorder. There is a big difference between obsessive compulsive personality traits, and having obsessive compulsive disorder. Likewise, there is constant reference in the evidence to the plaintiff's sense of righteousness, what might be referred to as priggishness, and of his being 'intense', and having few close personal friends. The plaintiff's best man at the wedding was Mr Moir, but Mr Moir made it clear that he resigned from the Many Rivers ALS because of the attitude that the plaintiff showed towards him when the plaintiff was the principal solicitor based at Newcastle, and therefore the person assigning work to, and supervising the work of Mr Moir. In other words, even best friends can fall out, and the falling out was due to the plaintiff's personality traits.
[23]
Finding
In my view, the weight of the evidence supports the proposition that the plaintiff had a transient episode of what could be described as a adjustment disorder at the time that the left the police force, and perhaps persisting until the beginning of 1999. However, I accept that once he stopped taking the Valium, that was given to him by his mother, at about the end of 1998, he performed his work as a solicitor with the ALS admirably, and continued to do so after the transfer to Newcastle in May 2000, and was working ably up until the time that he was appointed to the Magistrates Bench.
[24]
The issue
There are a number of formulations of what is alleged to be wrong with the plaintiff. Before discussing those, however, it is important to bear in mind the task which PSAC was charged with, and which grounds the present appeal. Section 10B(2) of the Act was at the relevant time is;
"An annual superannuation allowance shall not be granted under s 10 to a former member of the police force who resigned or retired unless:
(a) the former member notified the Commissioner of Police before the member's resignation or retirement, and within six months of receiving the injury which has caused the member's infirmity of body or mind, of that injury;
(a1) where the regulations so require, the notification was in or to the effect of the prescribed form, and
(b) STC (having regard to the medical advice on the condition and fitness or employment of the member) has certified that the former member would have been incapable, from that infirmity of body or mind, of discharging the duties of the member's office at the time of the member's resignation or retirement."
The decision of PSAC which grounds the current appeal was a decision made by it as delegate for the defendant which was, and is described in the Act, as STC. Accordingly the court is required to consider whether the former member, the plaintiff, would have been incapable from an infirmity of mind of discharging the duties of his office at the time of his resignation.
The important thing to note is the phrase, 'at the time of the member's resignation'. "At the time of," does not mean "on the day of". It must be understood that the Act relates to a superannuation scheme, it is not, for example, a sickness benefit scheme or a scheme such as a workers' compensation scheme which provides for weekly payments of compensation during a period of incapacity.
The following sections of the Act must be drawn to attention:
"7. Superannuation Allowance except where member hurt on duty.
(1) The annual superannuation allowance for a member of the police force who has served 20 years or more of equivalent full-time service and retires on or after attaining the age of 60 years or, being under that age, is discharged after being certified under s 8(1) to be incapable, from infirmity of body or mind, or personally exercising the functions of a police officer referred in s 14(1) of the Police Act 1990, is an amount calculated in accordance with the following formula…
First Column Second Column
Completed years Amount per centum
of both full-time and part-time
service of member
20 48.500
21 50.925
22 53.350
23 55.775
24 58.200
25 60.625
26 63.050
27 65.475
28 67.900
29 70.325
30 or more 72.750
(2) An annual superannuation allowance under subsection (1) shall not be payable to a member of the police force to whom an annual superannuation allowance is payable under section 10.
(3) If STC has made a determination under section 14AA in relation to an annual superannuation allowance payable under subsection (1), the amount of the allowance is reduced by the amount specified in STC's determination.
7AA. Superannuation allowance on early retirement
(1) (Repealed)
(2) Subject to subsection (2B), the annual superannuation allowance for a member of the police force who retires on or after reaching the age of 55 years and before reaching the age of 60 years is the amount calculated in accordance with the following formula…
(2B) If STC has made a determination under section 14AA in relation to an annual superannuation allowance payable under subsection (2), the amount of the allowance is reduced by the amount specified in STC's determination.
(3) An annual superannuation allowance under subsection (2) shall not be payable:
(a) (Repealed)
(b) to a member of the police force to whom an annual superannuation allowance is payable under section 7 or 10.
8. Determination of members medically unfit
(1) A superannuation allowance or gratuity must not be granted or paid under section 7 or 14 to a member of the police force who:
(a) is discharged after the commencement of the Police Regulation (Superannuation and Appeals) Amendment Act 1973, and
(b) at the time of the member's discharge is under the age of 60 years,
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 infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990.
Note. Section 14 (1) of the Police Act 1990 provides that a police officer has the functions conferred or imposed on a constable by or under any other law (including the common law) of the State.
(2) For the purposes of determining a member's incapacity:
(a) STC is not to have regard to the member's actual rank or position or functions (other than the functions referred to in subsection (1)), and
(b) the capacity to exercise a function by delegation is not taken to be a capacity to personally exercise the function.
(2A) (Repealed)
(3) In this section:
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.
8A. Disengagement benefit for members aged between 45-55
(1) The Commissioner of Police may, if the Commissioner considers that it is in the interests of the police force to do so, offer a disengagement benefit under this section to any class of members of the police force (or any particular members of the police force).
(2) A member of the police force is not eligible for a disengagement benefit under this section unless the member:
(a) is of or over 45 years of age but less than 55 years of age, and
(b) has served as a member of the police force for at least 20 years of equivalent full-time service.
(3) A disengagement benefit under this section is payable as follows:
(a) the portion of the benefit that is equal to the amount of the employer-financed benefit that would be payable under section 15 is payable from the Fund,
(b) the portion of the benefit that is equal to the amount that would be payable if the member had resigned and was paid a benefit under section 17 is payable from the Fund,
(c) the remainder of the benefit is payable by the Commissioner of Police and is not payable from the Fund.
(4) A member of the police force who accepts an offer of a disengagement benefit under this section shall be retired from the police force by the Commissioner of Police in accordance with the terms of the offer.
(5) The disengagement benefit under this section is a gratuity calculated in accordance with the following formula…
(7) The acceptance of an offer under this section must be in writing in accordance with the terms of the offer.
(8) This section does not apply to a contributor who is an executive officer (including the Commissioner of Police).
(9) Nothing in this section prevents a member of the police force who is offered a disengagement benefit from electing instead to make provision for the benefit provided by section 9B (Preserved benefit).
(10) If STC has made a determination under section 14AA in relation to a benefit under this section, the amount of the benefit is reduced by the amount specified in the determination.
9A. Commencement of pension
(1) Where an annual superannuation allowance is granted under this Act to a member of the police force who retires, the allowance is payable as from the day that next succeeds the day on which the member retires.
(2) (Repealed)
(3) Where an annual superannuation allowance is granted under this Act in consequence of the death of a member, or a former member of the police force, the allowance is payable as from the day that next succeeds the day of his or her death.
(4) An annual superannuation allowance granted under section 10 to a former member of the police force who resigned or retired is, subject to this Act, payable as from:
(a) the date the former member lodged the application for the allowance that was determined by STC certifying the matters referred to in section 10B (2) (b), or
(b) such earlier date as STC may determine if STC is satisfied that there are exceptional circumstances that merit STC doing so.
10. Superannuation allowance where member hurt on duty
(1) In this section:
attributed salary of office means:
(a) in relation to a member of the police force who is discharged - the member's attributed salary of office at the date of the member's discharge, or
(b) in relation to a former member of the police force who resigned or retired - the member's attributed salary of office at the date of the member's resignation or retirement.
disabled member of the police force means:
(a) a member of the police force who is discharged after being certified, pursuant to section 10B (1), to be incapable, from a specified infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990, or
(b) a former member of the police force who resigned or retired and who, according to a certificate given pursuant to section 10B (2) at any time after the member's resignation or retirement, was incapable, from an infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990 at the time of the member's resignation or retirement,
that infirmity being determined, pursuant to section 10B (3) or on appeal, to have been 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.
retired includes discharged as referred to in section 7 or 14.
(1A) Subject to this section, the annual superannuation allowance for a disabled member of the police force is:
(a) an amount that is equal to 72.75 per cent of the member's attributed salary of office,
(b) except where paragraph (c) applies, an additional amount that is:
(i) not more than 12.25 per cent of the member's attributed salary of office, and
(ii) commensurate, in the opinion of STC, with the member's incapacity for work outside the police force, and
(c) if the disabled member is totally incapacitated for work outside the police force and, in the opinion of STC, 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, an additional amount that is:
(i) not less than 12.25 per cent and not more than 27.25 per cent of the member's attributed salary of office, and
(ii) commensurate, in the opinion of STC, with the risks to which the member was so required to be exposed,
multiplied by the equivalent service ratio of the member as at the date of the member's discharge, resignation or retirement.
(1AA) If STC has made a determination under section 14AA in relation to an annual superannuation allowance payable under this section, the amount of the allowance is reduced by the amount specified in STC's determination.
(1B) An annual superannuation allowance may be granted under this section to a disabled member of the police force whatever the member's length of service.
(1BA) A superannuation allowance referred to in subsection (1A) or an additional amount of a superannuation allowance referred to in subsection (1D) is not payable to a disabled member of the police force unless an application for payment of the allowance or additional amount concerned is made:
(a) before the member reaches the age of 60 years, or
(b) not later than 5 years after the member resigns or retires,
whichever is the later.
(1C) Where a former member of the police force who resigned or retired is granted an annual superannuation allowance under this section, the allowance shall, at the time it first becomes payable, be increased or reduced, as the case may require, by the total amount (if any) that it would have been increased or reduced under Division 2 or any other provision of this Act if it had been granted when the former member resigned or retired.
(1D) STC may:
(a) make a determination at any time of an additional amount of a superannuation allowance under this section, and
(b) vary any such determination at any time,
and may direct that the determination or variation take effect from such date as STC considers appropriate.
(2) An annual superannuation allowance under this section shall not be payable to a former member of the police force who:
(a) wholly commuted under Division 3 a superannuation allowance that previously became payable to the former member under this Act, or
(b) has been paid a disengagement benefit under section 8A.
(3) If a superannuation allowance payable to a former member of the police force was partially commuted under Division 3, the allowance payable under subsection (1A) in respect of the member is to be reduced by the proportion that the commuted part of the superannuation allowance bears to the whole of the superannuation allowance.
(4)-(7) (Repealed)
10B. Medical examination of disabled member and determination of whether hurt on duty
(1) An annual superannuation allowance or gratuity must 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, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990.
(2) An annual superannuation allowance or gratuity must not be granted under section 10 to a former member of the police force who resigned or retired unless:
(a) the former member notified the Commissioner of Police before the member's resignation or retirement and within 6 months of receiving the injury which has caused the member's infirmity of body or mind, of that injury, and
(b) if the regulations so require, the notification was in the prescribed form, and
(c) STC (having regard to medical advice on the condition and fitness for employment of the member) has certified that the former member was incapable, from that infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990 at the time of the member's resignation or retirement.
(2A) For the purposes of determining a member's or former member's incapacity under this section:
(a) STC is not to have regard to the member's or former member's actual rank or position or any functions (other than the functions referred to in subsection (2) (c)) of the member or former member at the time to which the certification relates, and
(b) the capacity to exercise a function by delegation is not taken to be a capacity to personally exercise the function.
(2B), (2BA) (Repealed)
(2C) In this section:
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.
14. Gratuity for discharged members not hurt on duty
(1) Where a member of the police force:
(a) has served for a period less than 20 years of equivalent full-time service,
(b) is discharged after being certified, pursuant to section 8 (1) or on appeal, to be incapable, from an infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990, and
(c) is not entitled to be granted an annual superannuation allowance under section 10,
STC shall, subject to subsection (3), pay to the member a gratuity of 24 months' pay at the rate of the member's attributed salary of office at the date of the member's discharge.
(2) Where a former member of the police force who, after the member's discharge, received the gratuity payable under subsection (1) is thereafter entitled to an annual superannuation allowance or a gratuity by reason of having been hurt on duty when he or she was a member of the police force, the amount of the gratuity paid under subsection (1) shall be deducted from the annual superannuation allowance or gratuity in such instalments and at such times as STC may determine.
(3) If STC has made a determination under section 14AA in relation to a gratuity payable under subsection (1), the amount of the gratuity is reduced by the amount specified in STC's determination.
16. Return to duty of discharged member in receipt of allowance
(1) Notwithstanding the payment of any superannuation allowance or gratuity under this Act, STC may at any time require a former member of the police force who was discharged because of incapacity and who is in receipt of a superannuation allowance under section 7 or 10 to submit to a medical examination by 2 members of the Police Medical Board or other nominated medical practitioner or practitioners.
(2) If STC is satisfied, having regard to the advice of the persons who conducted the medical examination on the condition and fitness for employment of the former member, that the incapacity of the former member of the police force has ceased (or no longer precludes the former member from serving again in the police force in some position in which it would be reasonable for the former member to serve) STC may, with the approval of the Commissioner of Police:
(a) cancel or suspend the superannuation allowance of the former member, and
(b) require the former member to serve again in the police force.
(3) Unless the former member of the police force voluntarily agrees to serve again in the police force, the rank in which the former member is required to serve shall not be lower than the rank held by the former member before his or her discharge.
(4) If the former member of the police force refuses to submit to a medical examination under this section or to serve again in the police force, STC may cancel the superannuation allowance being paid to the former member.
20. Suspension of part of allowance in certain circumstances
(1) Notwithstanding anything in this Act, where a person entitled to receive a superannuation allowance payable under this Act (including any increase payable under this Act) would, in the opinion of STC, thereby be prejudicially affected in respect of any benefits otherwise receivable by that person, the amount of the allowance shall be such lesser amount than that provided for under this Act as STC determines.
(2) STC may, from time to time, vary or revoke any determination under subsection (1), and any such variation or revocation shall take effect on the day STC so varies or revokes the determination or on such earlier or later day as STC determines.
(3) Where STC, under this section, reduces the amount of an increase payable under this Act, the amount of the increase as determined by STC shall be payable in respect of such periods or at such times by way of lump sum or otherwise as STC from time to time determines.
(4) A part of a superannuation allowance that is not paid to a person because of a determination made by STC under this section shall, for the purposes of calculating any increase under this Act, be taken into account as if it had been payable.
(5) A part of a superannuation allowance that is not paid to a person because of a determination made by STC under this section shall, for the purpose of calculating a superannuation allowance payable to the person's surviving spouse in her or his capacity as such, be taken into account as if it had been payable.
These are the current provisions. They are inserted for ease. However, I am unaware of any substantive change in these provisions since 29 September 1998.
The Act appears to indicate that if the defendant finds that the member is suffering from infirmity of mind or body that makes him incapable of exercising the functions of a police officer, the defendant must find that that infirmity also existed "at the time of" the member's resignation. It would be perverse to find that there was such an infirmity on the day of the resignation, but then a hiatus in the existence of the infirmity until a much more recent date. The Act operates on the basis that the infirmity now existing existed at the time of the member's resignation and persisted from that day to the present. The only way that enables a suspension of the superannuation allowance would be a return to duty under s 16, but clearly that can only occur after a superannuation benefit has been granted and can only occur with the consent of the defendant and Commissioner of Police, that being such a rara avis that I have not experienced it in the 36 years that have been dealing with this legislation.
There are dicta in Industrial Relations Commission in Court Session which point in the same direction. For example, in SASTC v Daykin [2002] NSWIRComm 124, a joint judgment of the President Wright J, the Vice President Walton J (as his Honour then was) and Peterson J said this commencing at [23];
23 Nevertheless, the question for determination raises consideration of the way in which the statute operates in both contexts, superannuation simpliciter and hurt on duty. Mr. Menzies for the applicant submitted that while the usual case was that a member with a short term incapacity would not seek to access superannuation, this was not to say that the statute precluded that course.
24 We consider that an approach to the PRS Act which attributed to its purposes such short term remedies would be to misapply the statute. In Adams v State Authorities Superannuation Board, Cullen J. described infirmity, the basal aspect of the statute whether it be a long or short term condition claimed to justify a certificate, as "a physical or mental condition which prevents a member of the Police Force, for the foreseeable future, from discharging the duties of a police officer". This, we think, correctly portrays the primary intention of the PRS Act. While in theory an applicant may be free to bring a claim under this Act in respect of an obviously short term condition which might prevent the member working, the need to establish an infirmity with the longer temporal connotation means that such an application would be unlikely to be able to satisfy the Act's requirements.
27 …Where the incapability is said to derive from two or more independent conditions, there is simply no point in specifying some relatively trivial condition which itself could not lead to incapability in the statutory sense. For example, a depressive illness of such permanence as to satisfy the requirements may be joined with loss of a leg in a police motor vehicle accident. Assuming that the latter would create a statutory incapability, that example may be contrasted with one where the second condition is a crushed finger, similarly gained, but the injury being short term only. If these two situations are considered without reference to the depressive illness, the contrast is stark. While the crushed finger would have relevance to considerations of a workers' compensation kind, they have no relevance to superannuation based on the notion of relatively permanent incapability. It cannot constitute an infirmity within the meaning of the statute.
There is a much more succinct dictum elsewhere in the case law generated by the IRC in Court Session where it is merely pointed out that the court must consider the fact that the Act is talking about a superannuation scheme, and not, for example, a short closed period of incapacity.
[25]
Medical opinions
I turn then to the formulation of the various medical practitioners. The Roman playwright Publius Terentius Afer, usually known in the English speaking world as Terence, in his comedy, Phormio, said this;
"Quot homines, tot sententiae; suus cuique mos"
that can be freely translated as "so many men, so many sentiments, each has his own way." However the word, sententia, can mean a way of thinking, and also an opinion. May I observe quot medici tot sententiae: there are as many opinions as there are doctors. I do not know what the collective noun is for a plethora of psychiatrists; perhaps it might be a posse of psychiatrists. In any event, we have the usual conflicting number of opinions.
The first, of course, is the opinion not of a psychiatrist, but of Dr Robert Miller, the general practitioner, who wrote a certificate on or about 21 August 1998. He diagnosed, "Acute anxiety and depressive reaction". Using the terminology of DSM, that appears to be the diagnosis of an adjustment disorder with anxiety and depression.
Dr Bruce Westmore, following upon his examination of 26 June 2002 diagnosed a major depressive illness, with an alternative diagnosis of an adjustment disorder with depression. He believed on that occasion that it was due to the events of September 2001 and their aftermath.
Dr Klug who saw the plaintiff on the following day, 27 June 2002, diagnosed a major depressive disorder due to the events of September 2001 and their aftermath. Dr Milton who saw the plaintiff on 2 July 2002, provided no diagnosis because he did not believe the plaintiff was psychiatrically disturbed, but was merely displaying a normal emotional response.
When Dr Klug saw the plaintiff on the second occasion, that is on 13 March 2008, he diagnosed a chronic adjustment disorder with mixed features of anxiety and depression. He believed that was related to the police work-related stressors, of which the plaintiff told him on that day. However the doctor said that the plaintiff was predisposed to developing a major depressive illness, no doubt to justify the diagnosis provided by Dr Klug on 27 June 2002. Dr Edwards who saw the plaintiff on 20 March 2009, said that on the last day of service, the plaintiff had the psychiatric disorder of chronic adjustment disorder with mixed anxiety and depressed mood. However he now diagnosed the plaintiff's condition as being a generalised anxiety disorder with depressive features. As I have earlier indicated, a fair reading of the doctor's opinion appears to indicate that he related the development of the second condition to the initially diagnosed condition.
Dr Dunn on each occasion that he provided a report, 10 September 2009 and 3 May 2016 provided no diagnosis because like Dr Milton he appears to express the view that the plaintiff's condition was the result of a normal emotional response, or emotional impulse, that he left the police service because he was angry and disillusioned, not because he was mentally ill.
Dr Bertucen diagnosed that in September 1998 the plaintiff was suffering from an adjustment disorder with features of anxiety and depressed mood, but the plaintiff had not been incapacitated for any more than three years after he left the NSW Police.
Dr Westmore, who saw the plaintiff for a second time on 29 November 2016 confirmed that the plaintiff was suffering from a major depressive disorder in 2002, but now diagnosed an adjustment disorder, which is both episodic and transient. The diagnosis of episodic and transient means that it comes and goes. Why it should come and go is unclear. For how long a episode may last is also unclear. How does one know whether it was not present in 1999, 2000 and 2001 prior to the plaintiff's the stressors that the plaintiff experienced in September of 2001?
[26]
Disposition
I accept that the plaintiff was incapacitated by reason of an adjustment disorder with anxiety and depression during the period certified by Dr Robert Miller. I accept that the plaintiff may have remained labouring under that incapacity until he took up work with the ALS at Taree in November 1998. However, I am not persuaded that the symptoms persisted beyond the end of 1998.
When I consider the words, "At the time of the member's resignation", the words are apt to mean not merely on the day that he resigned, or the day after he resigned, but a period of time of an indefinite nature as adverted to by their Honours in the Industrial Relations Commission. Their Honours dicta, I respectfully adopt. It follows that the appeal is unsuccessful, and that I ought confirm the decision of the defendant made on 30 April 2009.
[27]
Notice
However, before making the order, I should refer to one other issue which has caused a major legal debate. At the time that PSAC made its decision, a submission was made to it by Ms Cathy Williams on behalf of the administrator of the Police Superannuation Fund, an organisation known as Pillar Administration. Her qualification(s) is/are unknown. The submission is found in exhibit G. It lists on the first page the medical condition claimed, which was a "Chronic adjustment disorder". There was then a box asking whether the NSW Police confirmed injury date after November 1976. Ms Williams completed that this manner;
"Yes - refer NSW Police correspondence - date of notification of injury - 19/11/08".
Of course no injury was reported on 19 November 2008. What did happen on that day is that the NSW Police Service wrote a letter to the defendant's administrator. The substance of that letter is this;
"Our records indicate that the former member reported off duty on sick leave from 21.08.1998 to 18.09.1998 for an 'anxiety/depression' condition. No formal claim was ever lodged. A thorough search was conducted to locate the former member's medical file to no avail. Papers have been retrieved from the former member's personnel file.
Accordingly, the NSW Police Force accepts that the former officer has complied with the provisions of the Act in that he notified the commissioner prior to his exit, and within six months of the injury occurring."
The second paragraph does not logically follow from the first. There is a non sequitur. The letter has been signed by Ms Wendy Banning of the Medical Discharge Coordination Unit of the Compensation and Insurance Section of the NSW Police Service. Again, Ms Banning's qualifications, if other than that of a claims clerk, are unknown. At the same time, as penning that letter, Ms Banning completed a questionnaire that had been sent by the defendant to the Compensation and Insurance Unit in which it was stated that there was a claimed injury of anxiety and depression and gave a date of injury of 21 August 1998 and said that the Commissioner had been notified on 21 August 1998.
As the law currently stands, the plaintiff was required to notify an injury giving rise to the infirmity which is claimed to be the basis of his entitlement to a hurt on duty pension. The mere notification of symptoms is insufficient. The history of the case law in that regard can be found in exhibit 4. On page 3 of the submission, the following is stated;
"PSAC's decision predated the judgment in SASTC v Hazlewood [2009] NSWIRComm 157 (Hazlewood), which confirmed that STC has to be satisfied about whether notice had been provided, but said that "STC is unable to go behind advice provided by the commissioner as to whether or not an injury had been notified. (Para.33, also para.100).
However, in June 2012, the Full Bench of the Industrial Court decided in Woollard v SASTC [2012] NSWIRComm 51 (Woollard no. 1), that its decision in Hazlewood was incorrect in that STC was not obliged to accept advice of the Commissioner of Police concerning notice of injury but could make its own investigation before making its decision as to whether notice in accordance with s 10B(2) had been provided. For completeness, in the Woollard Court of Appeal decision in 2014, the NSW Court of Appeal decided that the test for the statutory notice of injury was that the notice provided must have been notice of more than 'symptoms which may have been consistent with disease'.
On 9 June 2009, Mr Day lodged a dispute with PSAC's decision of 30 April 2009 and requested that his application be referred to the STC disputes committee for reconsideration. The dispute was not heard by the STC dispute committee (which become the MSC), although it remained on foot with STC and Mr Day's solicitor corresponding over the period 2009-2017 concerning information required before the dispute could be put to the MSC. Following the Court of Appeal decision in SASTC v Rossetti [2018] NSWCA 68 STC decided that it would unfair to just tell Mr Day that NSC no longer had any jurisdiction to hear his dispute, and that he was out of time to appeal PSAC's 2009 decision to the District Court, given STC had treated his dispute as still being on foot until the Court of Appeal decision. So, STC, by letter dated 14 January 2009, renotified Mr Day of PSAC's decision of 30 April 2009 and also of the correct avenue (as per the Court of Appeal decision) to appeal the decision (i.e. to the District Court)."
The defendant filed a defence which contains this plea;
"5. In answer to the whole of the plaintiff's application, the defendant asserts that the plaintiff did not notify the Commissioner of Police within the meaning of s 10B(2)(a) and 10B(2)(a1) of the Act in force at the date of resignation."
That caused the plaintiff to file a notice of motion on 20 May 2020 seeking that plea be struck out. When the matter came before me, I ordered that the hearing of the notice of motion be held at the same time as the hearing of the substantive appeal. In the interim, that is between the time of the notice of motion and the commencement of the hearing, the defendant on 3 July 2002 determined under s 10B(2)(a) of the Act that the plaintiff did not notify the Commissioner of Police before his retirement from the New South Wales Police Force, and within six months of receiving the injury, of an injury which caused the claim infirmity of mind of chronic adjustment disorder of mixed anxiety and depressed mood. That was communicated to the defendant by letter of 3 July 2002, which is exhibit 5. I granted leave to the plaintiff to file in Court a Reply.
The matter was the subject of an extensive written submission by the plaintiff, MFI 8. Involved in the argument is my decision in Johnson v SAS Trustee Corporation [2019] NSWDC 925. In that case, the defendant had made a decision under s 10B(2)(a), but no decision under s 10B(2)(b). Nevertheless, the plaintiff in that case asked me both to overrule the defendant's decision under s 10B(2)(a) and to make a finding that the plaintiff was suffering from an infirmity of mind from discharging the duties of his office at the time of his resignation. I considered the relief sought between [4] and [11] of my decision. The relevant part is this;
6. Section 10B of the Act, as in force at the date of the plaintiff's resignation, provided in subs (2):
"An annual superannuation allowance shall not be granted under section 10 to a former member of the police force who resigned or retired unless:
(a) the former member notified the Commissioner of Police before the member's resignation or retirement and within 6 months of receiving the injury which has caused the member's infirmity of body or mind, of that injury, and
(a1) where the regulations so require, the notification was in or to the effect of the prescribed form, and
(b) STC (having regard to medical advice on the condition and fitness for employment of the member) has certified that the former member would have been incapable, from that infirmity of body or mind, of discharging the duties of the member's office at the time of the member's resignation or retirement."
In the current case the defendant made a decision under s 10B(2)(a) of the Act. The defendant has yet to make any decision under s 10B(2)(b) of the Act.
7. The relief sought in the statement of claim and in the plaintiff's outline of submissions is therefore misconceived. The only determination made by the defendant concerns the giving of notice, and it is only an appeal from that decision that the Court can entertain. This Court is granted jurisdiction by s 21 of the Act. The relevant parts of s 21 are these:
"(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
……………………………………………
may, within the period of 6 months after the person is notified of that decision, apply to the District Court for a determination in relation to that decision.
(4) The District Court, after considering an application under this section, may make a determination that the decision of STC… or 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 District Court.
(5) The District Court shall not make a decision referred to in subsection (4)(b) unless STC… could pursuant to this Act make that decision."
I can only make a determination about a decision that has been made by the defendant. I cannot make a determination about a decision which the defendant has not made. As I pointed out to Counsel for the plaintiff during addresses, if the plaintiff wished the defendant to make a decision under s 10B(2)(b) the appropriate relief was to seek mandamus from the Supreme Court. The plaintiff has not attended to that.
8. However I express the view that it would have been preferable if the defendant could have made a decision under s 10B(2)(b) as well as its decision under s 10B(2)(a), because it may have shortened the length of this litigation and may have obviated a further piece of litigation should this litigation be successful, in the sense that the plaintiff obtain the relief that he seeks and the defendant then makes another decision by which the plaintiff felt aggrieved, there would be a further application to this Court. Furthermore it is not uncommon for decisions of the defendant to be made which do not accord entirely with an application made to it by a former member of NSW Police Force and, if such should occur, the plaintiff would then have an opportunity of seeking to establish whether an appropriate notice had been given of some other certified infirmity, resulting from some other injury of which the plaintiff may have given notice.
9. As I said in Page v Commissioner of Police (No 2) [2012] NSWDC 137 at [119]:
"There is before me an irrefragable fact. I perhaps ought to have said that there are before me two irrefragable facts but only one of them is presently relevant. The first irrefragable fact is that the plaintiff has the condition of PTSD. The second irrefragable fact, the one not presently relevant, is that at the time that he left the Police Force the plaintiff was incapable of personally exercising the functions of a police officer referred to in s 14(1) of the Police Act 1990. The second irrefragable fact comes regularly before me in applications under s 10(1A) of the Act where the STC, rather than the Commissioner of Police, is the defendant. I have had cause to observe over the best part of 18 years that sometimes one or both of those irrefragable facts is completely erroneous or completely contrary to the weight of the evidence."
10. For the purpose of deciding the current application, I must presume that the plaintiff will be successful in obtaining a finding from the defendant that the plaintiff would have been incapable from either chronic PTSD or major depression, or both, of discharging the duties of his office at the time of his resignation from the NSW Police Force.
11. The plaintiff relies upon two documents which could be said to be the relevant notice. The first is a "Claim for Hurt On Duty Benefits", being a P124, signed by the plaintiff and dated 27 September 1994. That is a four page document, albeit that the fourth page is completely blank. It is exhibit V. The document, like many, many documents in these proceedings, is also annexed to the plaintiff's affidavit (exhibit N to his affidavit), which is exhibit A, and also forms part of one of the many annexures to exhibit TT, the claim for the hurt on duty pension. The second document relied upon by the plaintiff as notice is a report by Inspector G M Winson, the duty officer at the Wagga Wagga Police Station, dated 11 August 1997, which is headed, "Support for police following attendance and action at fatal motor vehicle accident, Yerong Creek on 9 August 1997". That is exhibit QQ and is annexure Q to the plaintiff's affidavit which is exhibit A. It is also, of course, an annexure to exhibit TT.
If my decision be correct, then the only formal decision made by the defendant was under s 10B(2)(b).
However the defendant only made a formal decision under s 10B(2)(a) on 3 July 2020 and notified the plaintiff on that date, and the plaintiff has six months from that date to consider whether he be aggrieved by the decision of the defendant made on 3 July 2020. In the statement of claim, the plaintiff does not seek that the Court make any ruling on the defendant's decision under s 10B(2)(a). So, in my view, it is not open to me to do so. In any event, because of the finding I have already announced, the exercise has become otiose, which is a small mercy for us all.
[28]
Order
For those reasons I confirm the decision of the defendant made by its delegate, PSAC, on 30 April 2009.
[29]
Amendments
21 July 2020 - Stylistic error in coversheet amended.
22 July 2020 - [111] Change "analysis of the facts" to "an analysis of the facts".
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Decision last updated: 22 July 2020