Day v SAS Trustee Corporation

Judgment

1. 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.
2. 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".
3. 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".
4. 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."
5. 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.
6. 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.

Plaintiff's background

1. 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.
2. 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.

Work at Dubbo

1. 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."
2. 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.

Work at Lismore

1. 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.
2. 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.
3. 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".
4. 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."

Plaintiff's first wife

1. 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.

Alleged Stressors

1. 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….."
2. 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."

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.

1. 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.
2. 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.
3. 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.

Plaintiff's resignation

1. 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.

ALS at Taree (1)

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.
2. 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."

Renvoi - visits by Police

1. 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."
2. 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.

ALS at Taree (2)

1. 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."
2. 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.

ALS at Newcastle

1. 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.

Application for appointment as a Magistrate

1. 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.
2. 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.

Plaintiff's allegation

1. 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.
2. 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."
3. 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.

The plaintiff as a Magistrate

1. 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."

Resignation from the Bench

1. 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.

Work as a solicitor

1. 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.
2. 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.

Medical attendances from 2008

1. 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.
2. 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."

Some facts about events in 2001

1. 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.
2. 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.
3. 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.

Inconsistencies

1. 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.
2. 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'.
3. 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."
4. 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

Corroboration?

1. 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."
2. 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.

The plaintiff's personality

1. 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.

Finding

1. 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.

The issue

1. 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.
2. 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.
3. 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.

Medical opinions

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

Disposition

1. 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.
2. 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.

Notice

1. 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."
2. 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.
3. 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)."

Order

1. For those reasons I confirm the decision of the defendant made by its delegate, PSAC, on 30 April 2009.

Amendments 21 July 2020 - Stylistic error in coversheet amended. 22 July 2020 - [111] Change "analysis of the facts" to "an analysis of the facts". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 July 2020