Day v SAS Trustee Corporation

The claim to a superannuation allowance

1. On 4 June 2008, the appellant applied for a superannuation allowance. PRS Act, s 3 establishes the "Police Superannuation Fund" and requires the respondent (also referred to in the Act as STC) to pay out of that fund "the benefits provided by this Act". The relevant benefit is "the annual superannuation allowance for a disabled member of the police force", being an amount calculated in accordance with s 10(1A). A "disabled member of the police force" is defined in s 10(1) to include a former member of the police force who has been certified by the respondent under s 10B(2) as incapable, from an infirmity of body, of exercising the functions of a police officer at the time he or she resigned, and whose infirmity has been determined by the Commissioner of Police under s 10B(3) to have been caused by his or her being hurt on duty.
2. Section 10B(2) provides: 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.
3. The appellant's application was considered by the Police Superannuation Advisory Committee (PSAC), as the delegate of STC (PRS Act, s 2J), on 30 April 2009. PSAC declined to certify the appellant under s 10B(2)(c) and gave him a formal notice to that effect on 7 May 2009. The advice in that notice as to the means by which he could dispute PSAC's decision was incorrect, a matter which became clear only after the decision of this Court in SAS Trustee Corporation v Rossetti [2018] NSWCA 68. Accordingly, on 14 January 2019 the respondent provided the appellant with a further notification which explained that he could apply under PRS Act, s 21 to have the District Court make a determination in relation to PSAC's decision, in the exercise of its "compensation jurisdiction": see District Court Act 1973 (NSW), s 142G. The appellant commenced proceedings in the District Court on 2 July 2019.

Two further matters

1. Before turning to the grounds of appeal from the decision of the District Court, it is convenient to note two other matters. The first is that the proceedings in the District Court were argued and decided by reference to whether the appellant had been incapable from an infirmity of mind of discharging the duties of a police prosecutor at the time of his resignation. However, by June 2008, as a consequence of amendments made by the Superannuation Legislation Amendment Act 2006 (NSW) and the Police Superannuation Legislation Amendment Act 2007 (NSW), ss 10 and 10B referred to "the functions of a police officer", and s 10B(2A) provided: 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.
2. No issue was taken about this point by either party, and the appeal may be decided on the same basis as the trial - which would seem, on the face of it, to be favourable to the appellant.
3. The second concerns s 10B(2)(a), which provides that the former officer must have notified the Commissioner of Police of the injury which caused his or her infirmity of body or mind before his or her resignation or retirement, and within 6 months of receiving the injury. PSAC's decision of 30 April 2009 was in terms limited to the question raised by s 10B(2)(c). On 3 July 2020, well after the proceedings in the District Court had commenced, the CEO of the respondent purported to determine that the appellant had not satisfied s 10B(2)(a). Before the primary judge, the respondent relied on that decision as an "answer to the whole of the plaintiff's application" (at [150]). His Honour did not decide whether to accept that submission and did not review the notice decision, observing that "the plaintiff does not seek that the Court make any ruling on the defendant's decision under s 10B(2)(a)" and concluding that it was "not open to me to do so" (at [152]).
4. Both parties made submissions to this Court about s 10B(2)(a), with the appellant contending that PSAC must have accepted that notice had been given before addressing s 10B(2)(c) (citing SAS Trustee Corporation v Woollard (2014) 86 NSWLR 367; [2014] NSWCA 75 at [63] (Bathurst CJ)) and that it was now estopped from contending otherwise. By the conclusion of oral argument, the parties had accepted that the notice issue did not arise and that this Court could limit its attention to s 10B(2)(c). Grounds of appeal 1 and 2 and the respondent's notice of contention, all of which were directed to the notice issue, are accordingly not pressed. This makes it unnecessary to decide whether the appellant's interpretation of Bathurst CJ's remarks in Woollard is correct.

The grounds of appeal

1. An appeal to this Court from an exercise by the District Court of its compensation jurisdiction may be brought by any party "aggrieved by an award of the Court in point of law": District Court Act, s 142N(1). Thus, the appeal is confined to points (or questions) of law.
2. In his notice of appeal filed 14 October 2020, the appellant set out 10 grounds of appeal, each of which purported to raise a point of law. His written submissions filed 10 December 2012 also identify 10 grounds of appeal, albeit grounds which differ, both as to numbering and in some cases as to substance, from those in the notice of appeal. In oral argument before this Court, senior counsel for the appellant dealt only with two questions of law, and otherwise relied on his written submissions.
3. The first, which reflects grounds 3 and 4 in the written submissions and grounds 6 and 7 of the notice of appeal, was whether the primary judge had misconstrued s 10B(2) as limited to incapacities during "a period of time of an indefinite nature" (J [146]), and accordingly erred in failing to grant a certificate under s 10B(2) on the basis of his finding that the appellant experienced a "transient episode of ... an adjustment disorder" for a few months after his resignation (J [131]).
4. The second, which did not match any previously identified ground of appeal, was whether the primary judge had constructively failed to exercise jurisdiction by failing to address a substantial, clearly articulated argument concerning the relevance of the appellant's subsequent behaviour and employment to his incapacity to work as a police officer at the time of his resignation and thereafter: cf Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24]-[25]. It may be accepted that a failure to address such an argument would constitute an error of law, and that the question whether there was such a failure raises a point of law: see Liddell Coal Operations Pty Ltd v Hector [2021] NSWCA 47 at [53].
5. It is appropriate to address these two questions before dealing with the remaining grounds addressed by the appellant's written submissions. No objection was taken by the respondent to the fact that some of the grounds supported by the appellant's written and oral submissions do not feature in the notice of appeal, and issue was joined in relation to them. To the extent that other grounds are identified in the notice of appeal but not the subject of any supporting submissions, they may be taken not to be pressed. Unless otherwise specified, in what follows references to numbered grounds of appeal are to the grounds as enumerated in written submissions.

Did the primary judge misconstrue s 10B(2)?

1. The resolution of this question turns in significant part on the interpretation of the primary judge's findings as to the appellant's condition at and shortly after his resignation from the police force. It is convenient to begin by setting out his Honour's findings at [131] and [145] in full: In my view, the weight of the evidence supports the proposition that the plaintiff had a transient episode of what could be described as an adjustment disorder at the time that he 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. ... 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. Notwithstanding those findings, the primary judge declined to grant a certificate under s 10B(2)(c) on the basis that the appellant's adjustment disorder and any consequent incapacity were of insufficient duration to satisfy the requirements of the PRS Act.
3. The primary judge's approach to there being a temporal dimension associated with the state of being incapable of discharging particular duties by reason of an "infirmity of body or mind" did not start with that phrase, but rather with the description of the time when that incapacity had to be certified to exist, namely "at the time of the member's resignation". Having regard to the fact that "the Act relates to a superannuation scheme", his Honour held that this did "not mean 'on the day of'" (at [133]). Rather, he considered those words "apt to mean not merely on the day that [the appellant] 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" (at [146]).
4. His Honour was referring to SAS Trustee Corporation v Daykin [2002] NSWIRComm 124; (2002) 115 IR 72, where the question was whether an infirmity could be attributable to more than one injury or illness. The Commission (Wright, Walton and Peterson JJ) held that the scheme of the Act is "based on the notion of relatively permanent incapability" (at [27]) and that an infirmity must be a condition which "prevents a member of the Police Force, for the foreseeable future, from discharging the duties of a police officer" (at [24], citing Cullen J in Adams v State Authority Superannuation Board (unreported, IRC90/551, 5 December 1991)). Adopting their Honours' reasoning as he did (at [146]), the primary judge concluded that the appellant's short period of incapacity due to an adjustment disorder with anxiety and depression was not an infirmity of mind within s 10B(2)(c).
5. The appellant contends that the primary judge's findings at [131] and [145] involved a finding that he was incapable by reason of an infirmity of mind of exercising the functions of a police officer at the time of his resignation within the meaning of s 10B(2)(c), and that his Honour erred in holding otherwise on the basis that the appellant's infirmity was not "of an indefinite nature". He accepts that an "infirmity" within the meaning of s 10B(2) must be "of some duration" and that a "transient" or "trifling" condition will not suffice. However, stressing the statutory language of "at the time of the member's resignation", he takes issue with the requirement that the infirmity be "of an indefinite nature". As I have already indicated, his Honour's use of that phrase is best understood as a reference to the construction of s 10B(2) adopted in Daykin. The appellant was more reluctant to contend that Wright, Walton and Peterson JJ erred in Daykin in holding that an infirmity was a condition making a police officer incapable "for the foreseeable future" of discharging his or her duties, although he ultimately submitted that Daykin "still has problems with it in terms of applying this Act". His ultimate point was that "six months is enough for the purpose of determining this application with respect to this applicant".

The primary judge's findings

1. The short answer to the appellant's argument is that whether or not a condition of that duration would suffice, there was no finding to that effect. As appears clearly from the passages set out at [17] above, the primary judge's findings were very limited. In terms they were that the appellant had a "transient episode of what could be described as an adjustment disorder at the time that he left the police force" (at [131]) and that he was "incapacitated by reason of an adjustment disorder with anxiety and depression during the period certified by Dr Robert Miller", being 21 August to 18 September 1998 (at [145]). His Honour noted as possibilities that the disorder and its symptoms "perhaps" persisted until the beginning of 1999 and that the appellant "may have" remained incapacitated until he commenced work with the ALS in November 1998, and found affirmatively that the disorder did not persist into 1999.
2. On those findings, the appellant had a "transient" adjustment disorder (the claimed infirmity) at the time he left the police force and was incapable by reason of that condition of exercising the functions of a police officer between 21 August and 18 September 1998. The primary judge did not decide whether to accept the possibilities that the transient adjustment disorder persisted until the beginning of 1999 and the incapacity until the appellant commenced work with the ALS, perhaps because his Honour did not think the evidence supported affirmative findings to that effect. In any event, taking those possibilities at their highest, the appellant had a transient condition of approximately four months' duration giving rise to an incapacity which lasted from 21 August until some time in November. That is insufficient even on his preferred construction that six months would suffice.

The proper construction of the statute

1. Section 10B(2) turns on three concepts. The first is an injury, which is to be the subject of a notification to the Commissioner of Police under sub-s (2)(a). The second is an infirmity of body or mind, which must have been caused by an injury the subject of a notification. The third is incapacity: the former member must have been "incapable, from that infirmity of body or mind," of exercising the functions of a police officer at the time of his or her resignation or retirement. Provided that those three elements are present, and the Commissioner of Police has decided under s 10B(3) that the former member's infirmity was caused by his or her being "hurt on duty", the former member will be a "disabled member of the police force" as that term is defined in s 10(1), and accordingly entitled to a superannuation allowance calculated in accordance with s 10(1A).
2. None of "injury", "infirmity", "incapable" or "incapacity" is defined, but the key phrase, "incapable, from an infirmity of body or mind", is an old one. In the relevant context, of police pension legislation, it is traceable to the Police Act 1890 (UK), which set up a uniform superannuation scheme for members of metropolitan and provincial police forces in England and Wales. Section 1 of that Act entitled "every constable in a police force" to retire and receive a pension for life after 25 years of service, after 15 years of service if "incapacitated for the performance of his duty by infirmity of mind or body", and at any time if incapacitated by an infirmity caused by an injury received "in the execution of his duty". Constables incapacitated other than by being hurt on duty, and before completing 15 years of service, could be granted a gratuity. Section 5(1) required that before granting a pension to a constable "on the ground of his being incapacitated by infirmity", the relevant authority be satisfied by medical evidence "that the incapacity is likely to be permanent". Nevertheless, s 5(2) provided for the reassessment of that incapacity from time to time ("yearly or otherwise") and s 5(4) for the recall to duty, and cancellation of the pension of, a former constable whose incapacity ceased before he would otherwise have become entitled to retire.
3. Sections 28-36 of the Police Regulation Act 1899 (NSW) and the Police Regulation (Superannuation) Act 1906 (NSW), which soon replaced the former, provided for a similar but not identical pension scheme. Section 7 of the PRS Act (as made) defined the "annual superannuation allowances" to which members of the police force would become entitled on retirement by reference to their length of service. Section 9 defined the "age of retirement" as 60 years in most cases, and s 8 provided that no superannuation allowance was payable to a member of the police force who retired before 60 years of age unless he was certified as "incapable, from infirmity of body or mind, to discharge the duties of his office". Injuries received in the execution of duty were dealt with by s 10, which permitted the grant of a gratuity to a member of the police force "disabled by any wound or injury" so received.
4. Thus, the essential elements of the Police Act 1890 were, with some modifications, replicated by the early NSW legislation. In each scheme the notion of incapacity from infirmity of body or mind served the same function, of permitting earlier than normal retirement and access to pension entitlements. The NSW legislation did not include any express requirement that infirmity or incapacity be "likely to be permanent".
5. The provisions of the PRS Act in force in June 2008 are less straightforward, but they contain a scheme along the same lines of those earlier statutes. Section 7(1) describes the annual superannuation allowances payable to members of the police force who have completed 20 or more years of full-time equivalent service and either retire on or after reaching 60 years of age or are discharged as incapacitated from infirmity of body or mind, unless the member is in receipt of an allowance under s 10. A member of the police force who is discharged as incapacitated from infirmity of body or mind, but who has not served for 20 or more years and does not satisfy the requirements of s 10, is entitled to a gratuity of 24 months' pay under s 14(1). Section 8(1) provides for the certification of incapacity of members of the police force referred to in ss 7 and 14, and is in substantially the same terms as s 10B(2)(c). Finally, by s 10, an annual superannuation allowance is payable to a "disabled" member of the police force, whatever their length of service. The word "disabled" has been redefined by reference to incapacity and infirmity: a disabled member of the police force is a member who retires or is discharged while incapacitated from infirmity of body or mind, provided the infirmity was caused by the member being "hurt on duty". For the purpose of the calculation of the amount of the allowance payable under s 10, but not otherwise, "retired" includes "discharged" as incapable from infirmity of body or mind.
6. Ordinarily, a superannuation allowance under the PRS Act is payable for life. Section 16(1) provides that "at any time" STC may require a former member of the police force who was discharged because of incapacity and is receiving a superannuation allowance under ss 7 or 10 to "submit to a medical examination". If after such an examination STC is satisfied that "the incapacity of the former member of the police force has ceased", s 16(2) and (3) permit STC to require the former member to "serve again in the police force" and to cancel his or her superannuation allowance unless he or she voluntarily agrees to do so. The allowance may also be cancelled under s 16(4) in the event that the former member refuses to submit to a medical examination. No equivalent provision is made for the reconsideration of the question of disablement in the case of a former member who has resigned or retired while incapacitated by an infirmity. Only to this limited extent does the PRS Act contemplate that an incapacity may cease.
7. Turning directly to the question of construction, both "infirmity" and "incapacity" have connotations of permanence or persistence, and in an appropriate context "infirmity" is capable of meaning a permanent condition. Rule 14 of the Rules of the Commercial Travellers' Society, established in 1800, had provided for the payment of gratuities to members, including those who "become infirm, or meet with any other infirmity". Writing in 1896, Kekewich J considered "infirmity" in r 14 to mean "some permanent disease, accident, or anything of that kind, rendering the member an object deserving of the assistance of the society": In re Buck; Bruty v Mackey [1896] 2 Ch 727 at 734. And in Re Boothroyd [1986] 1 Qd R 167 at 174, Thomas J, whilst not accepting that the word necessarily introduced a concept of unqualified permanence, considered that it "must obviously refer to something durable and not transient".
8. The distinction drawn by s 10B(2) between an "injury" and an "infirmity" reinforces that connotation. It will not suffice for a member of the police force to have been rendered temporarily incapable of performing the functions of a police officer by an injury: the condition caused by his or her injury must answer the description of an "infirmity", apparently as more than the mere state of being injured. In terms, as the appellant emphasises, the statute requires only that the member be incapable from an infirmity "at the time of [his or her] resignation or retirement". But that requirement is best understood as designed to exclude members of the police force whose disabling condition only develops or worsens after they retire or resign, and not as indicating that an "infirmity" need not be likely to endure.
9. The meaning of a statutory provision or phrase is to be determined by reference to the language and purpose of the statute of which it forms part: Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69] (McHugh, Gummow, Kirby and Hayne JJ); and where multiple meanings are open, the choice between them "may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute": SAS Trustee Corp v Miles (2018) 265 CLR 137; [2018] HCA 55 at [20] (Kiefel CJ, Bell and Nettle JJ). In this case the only understanding of "infirmity" which is consistent with the role that term plays in the scheme of the PRS Act is as denoting a condition giving rise to an incapacity that is likely to continue "for the foreseeable future" (Daykin at [24]) or, to use Thomas J's expression, which is "durable and not transient". On that view, a police officer with a broken leg will have an injury, but not necessarily an infirmity - unless, for example, the break does not heal properly, or ultimately leads to the loss of the limb. Similarly, exposure to traumatic events or stressors may cause a transient period of depression and anxiety, or a persisting psychiatric condition from which full recovery is unforeseeable: only the latter is capable of being an infirmity in the relevant sense.
10. This ground should be dismissed.

Was there a constructive failure to exercise jurisdiction?

1. The appellant's submission is that his case before the primary judge involved "three key issues" as to the relevance to the assessment of his ongoing incapacity to work as a police officer of his conduct and employment after his resignation from the police force. He contends that the primary judge failed to address or even mention these issues in his reasons and that this omission constituted a failure to address a "substantial, clearly articulated argument relying on established facts" (Dranichnikov at [24]) or to identify and determine critical issues in dispute (Goodwin v Commissioner of Police [2012] NSWCA 379 at [83], [104]ff).
2. Before turning to the issues which the primary judge is said not to have addressed, it is necessary to note what is involved in a "constructive failure to exercise jurisdiction" in the Dranichnikov sense. In that case the question was whether the Refugee Review Tribunal had failed to discharge the function conferred upon it by the Migration Act, of reviewing the refusal of a protection visa, by reason of its misunderstanding of the group or class of which Mr Dranichnikov claimed to be a member (per Gummow and Callinan JJ at [26]-[27]). The consequence of the Tribunal's mistake was that it failed to identify, much less determine, the first question it was required to decide, namely whether the group of which the applicant claimed membership constituted a social group for the purposes of the refugee Convention. As Kirby J explained at [88], that mistake was "essentially definitional, and amounts to a basic misunderstanding of the case brought by [the] applicant".
3. Goodwin was an appeal under s 142N of the District Court Act from a decision of the District Court in its compensation jurisdiction affirming the decision of a delegate of the Commissioner of Police that Mr Goodwin had not been "hurt on duty" within s 10B(3)(a). Mr Goodwin claimed that the major depressive disorder for which he had been discharged was caused by his exposure to traumatic stressors in the course of his police work. Central to his case were seven "critical issues" as to the onset and cause of his undoubtedly chronic PTSD, and the temporal and causal relationship of that condition to his major depressive disorder. Each of the propositions supporting Mr Goodwin's case was either not in dispute or the subject of uncontroverted and unrejected lay or expert evidence (at [104], [108]). None had been "addressed in a fashion which considered, let alone determined, [its] significance" (at [105]). In those circumstances the primary judge had failed to address "central elements" of Mr Goodwin's case and so constructively failed to exercise jurisdiction.
4. As those decisions illustrate, a constructive failure to exercise jurisdiction (or a purported exercise, in the sense that there is an appearance of an exercise of jurisdiction) as alleged by the appellant is not a mere failure to consider evidence or to address an argument or submission, which may be contingent or otherwise insignificant, but a failure to understand and determine a case or claim. The ultimate question is whether a failure to consider and address certain issues or arguments involved a failure to address central or critical elements of the case or claim: compare, in relation to failures to consider evidence, Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [69], [111]. It will be insufficient for the appellant to show that his "three key issues" were not stated and determined discretely. What he must show is that they raised "substantial" (in the sense of clearly material) arguments or questions which the primary judge in substance failed to address in determining the appellant's claim to have been incapable, by reason of a chronic adjustment disorder, of exercising the functions of a police officer at the time of his resignation.
5. Each of the "three key issues", which are perhaps better characterised as arguments or submissions, was said to have been relevant to what the primary judge "relied on [as] implausibilities in the plaintiff's evidence". They were as follows. First, that no inference adverse to the appellant could be drawn from the absence of medical complaint in the period between his resignation from the police force and his resignation from the magistracy, or between his resignation from the magistracy and his application under s 10B, in each case because on the evidence of the appellant and his first wife, Ms Belinda Kang, he was a "stoic" and elected to "tough it out" rather than seek medical treatment. Secondly, that the appellant's infirmity was responsive to stimulus, in that his anxiety and depression both became more acute "when he came into contact with police officers and so forth". Thirdly, that the fact the appellant was able to work effectively as a solicitor for the ALS did not mean he was capable of discharging the functions of a police prosecutor at the time of his resignation. As senior counsel for the appellant put it, working for the ALS "does not equate to the working environment when you're actually turning up as a police officer, as a police prosecutor, taking your instructions from police and so on".

The second and third issues

1. It is convenient to address these issues together, and before the first. They relate to an obvious and fundamental difficulty for the appellant's claim to have been incapable by reason of a chronic adjustment disorder with mixed anxiety and depression of performing the work of a police prosecutor at the time of his resignation from the police force in September 1998. That difficulty was that in November 1998 he commenced work as a criminal solicitor with the ALS (at [54]). The appellant's role with the ALS involved, as he accepted in cross-examination, "almost constant court work". That he performed very ably in that role, as he also conceded in cross-examination, is evident from the fact that he became the principal solicitor of the Newcastle office in May 2000, and not long thereafter was invited by the Chief Magistrate to apply to become a magistrate (at [59]). In his expression of interest in appointment to the magistracy the appellant stated that he had "always maintained a strong rapport with ... the Police" (at [61]).
2. As the primary judge observed at [64], he was being "asked to find throughout the time that [the appellant] 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" (at [64]). It would be somewhat surprising if his Honour had in fact disregarded the appellant's explanation for what would otherwise seem to be the fundamental improbability in his case. And, indeed, he did not.
3. The primary judge was very clearly aware that an important aspect of the claimed adjustment disorder was that it was responsive to stimulus, namely exposure to police officers - the second issue. His Honour noted at [65] that: One aspect of that [chronic adjustment disorder] 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."
4. The appellant's description of his adjustment disorder raised the question whether his ability to work successfully as a criminal solicitor for the ALS was inconsistent with his having or continuing to have an adjustment disorder involving a phobia of police characterised by marked "hatred" and "anxiety", sometimes progressing to "agitation" and "anxiety attacks". There would be no merit in a submission that the primary judge failed to address this question. It was central to his analysis of the appellant's case. As his Honour reasoned at [66]: 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.
5. Similarly, the primary judge observed at [99] that: Dr Bertucen also was also told by the plaintiff the when he was working for the ALS, he continued to suffer from anxiety attacks, 'as he was in frequent contact with the police'. Nevertheless, there was no treatment for that, at least commencing in 1999. Dr Bertucen's history then says this; "For the next few years, admittedly, Mr Day sought to 'target' police as a solicitor within the ALS owing to a deep-seated feeling of having fallen foul of corrupt police within the NSWPF, persecuted and effectively hounded out of a career which he cherished." If that were his attitude, it appears to me to be difficult to comprehend how he worked so effectively with the ALS, and was able to persuade the Chief Magistrate and the Attorney General of this state and the Cabinet to appoint him to the position of a magistrate. See also at [104]-[107] and [121]-[123].
6. It is true that the mere fact the appellant was capable of working as a criminal solicitor for the ALS could not show he had the capacity to work as a police prosecutor at that time. Indeed, s 10(1A) of the Act expressly contemplates that an incapacitated police officer might nevertheless be capable of work outside the police force. However, as the passages set out above show, the primary judge did not reason in that way. Instead his Honour asked whether the appellant's capacity to work successfully for the ALS was consistent with the appellant having the chronic adjustment disorder he had described in giving evidence and to the psychiatrists who examined him after 2008, and concluded, reasonably, that it was not. His Honour accordingly did not accept that the appellant had been suffering from a chronic adjustment disorder, as opposed to a transient condition for a brief period around the time of his resignation from the police force. None of that involved any failure to grasp the appellant's point that the ALS and the police were different working environments. To the extent the appellant's complaint about the treatment of the third issue has any remaining content, it is that his Honour's conclusions were wrong in fact. That complaint does not raise any point of law.

The first issue

1. A fundamental difficulty for the appellant in relation to this issue is that its factual basis, that the appellant was a "stoic", is not established: cf Dranichnikov at [24]. It is true that the evidence given by the appellant and Ms Kang as to his stoicism was not the subject of a specific attack. But the primary judge upheld the respondent's general challenge to the reliability of the appellant's evidence, which was based on his admission that much of his evidence involved ex post rationalisation, and on the evidence of Mr Nick Moir, who had worked with the appellant as a police prosecutor and at the ALS, that "Roland's memory is destroyed" (at [115], [117]). His Honour also declined to accept the evidence of Ms Kang "as being accurate or reliable" (at [129]). Those difficulties necessarily extended to the evidence that the appellant was a "stoic", which his Honour was entitled to treat as simply another ex post rationalisation.
2. Immediately after making his observations extracted at [42] above, the primary judge observed that "the plaintiff did not seek any medical treatment" until shortly before his resignation from the magistracy, and that he did not take any "prescribed medication" at any point, other than his mother's Valium for a brief period after commencing work with the ALS. In the following sentence, his Honour noted that "[t]his brings into sharp relief a major problem with the plaintiff's case, its inherent implausibility". But that remark must be understood in context. The reasoning at [66] was directed to the likelihood of the appellant successfully performing work requiring daily interaction with police prosecutors, and police officers giving evidence, despite experiencing marked anxiety - sometimes progressing to anxiety attacks - in response to any contact with police. Whether or not the appellant was a stoic, that he had no medical assistance while working as an ALS solicitor plainly made it less likely that he was performing that role successfully notwithstanding that he was suffering from a chronic adjustment disorder (as he claimed).
3. With that exception the primary judge did not place any significant weight on the appellant's failure to seek treatment for his adjustment disorder. The larger "glaring improbability" in the appellant's psychiatric history, as his Honour saw it, was "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" (at [114]). As the primary judge explained at [84]-[85], when the appellant was first examined by Dr Klug on 27 June 2002, he gave "no history of persisting symptoms of mental illness between the time of [his] resignation from the police force and seeing Dr Klug ... [T]he history dated back only to events of September 2001, and in particular to the marital disharmony following upon the plaintiff's move to Sydney with his wife". Only at his second consultation with Dr Klug in 2008 did he first claim that "despite his resignation from the police force he continued to have a large number of symptoms which included marked hatred of the police, a phobic avoidance of his brother who was a police officer, and marked anxiety response to any contact with police or reminders of his police service". Again, whether the appellant was a stoic who tended to avoid seeking medical treatment had nothing to do with the significance of these inconsistent accounts of his psychiatric history.
4. At various points in his reasons the primary judge set out passages of psychiatric reports which noted that the appellant had not sought medical treatment around or after his resignation from the police force (at [84], [87], [108]). The first two of these passages simply noted without adverse comment that the plaintiff did not have any history of psychiatric treatment. The third, from a report of Dr Dunn dated 3 May 2018, observed that every "psychiatrist [who] has assessed the patient since [his resignation from the police force] has, therefore, been in the unenviable situation of having to extrapolate retrospectively and hypothesise on whether a diagnosis had applied four years (and sometimes up to 16 years) earlier" and that "all (or nearly all) of the patient's presentations have been within the context of a medico-legal assessment". Those somewhat argumentative observations of Dr Dunn were directed to the weight to be afforded to psychiatric opinions given in a medico-legal context long after the relevant period. Neither commented on any failure of the appellant to seek medical treatment as a reason for not accepting the veracity of his history. More significantly, none of Dr Dunn's observations at [108] received any clear or unqualified endorsement in the primary judgment.
5. The so-called first issue as narrowly formulated never arose for separate determination. In addressing the question as to the existence, nature and extent of the appellant's adjustment disorder in and after 1998, the primary judge did not accept the evidence of the appellant and Ms Kang, and focused on the inconsistent medical histories the appellant gave in consultations in 2002 and the fact that he had worked successfully as a criminal solicitor.

Conclusion

1. The primary judge did not fail, in the sense contended, to exercise the District Court's jurisdiction. This ground should be dismissed.

The remaining grounds of appeal

1. It has already been noted that grounds 1 and 2, which relate to the notice issue, are not pressed. The remaining grounds, which were not abandoned but were not the subject of any oral submissions, can be dealt with shortly.

Whether finding that the appellant's infirmity did not persist beyond 1998 not open (ground 5) or involved a denial of procedural fairness as being contrary to expert evidence that was not the subject of cross examination (ground 8)

1. The appellant observes that the respondent led no expert medical evidence to the effect that the appellant had ceased to have an adjustment disorder or a related condition by late 1998, and that none of the appellant's experts, who opined to the contrary, was cross-examined. Accordingly, he submits, the primary judge's finding that his condition had ceased by that time was not open on the evidence and was contrary to the so-called rule in Browne v Dunn (1893) 6 R 67 (HL).
2. As Gleeson CJ explained in R v Birks (1990) 19 NSWLR 677 at 688, "the central purpose of the rule" in Browne v Dunn, "to secure fairness in the conduct of adversary proceedings", provides the "best guide" to both its requirements and the consequences of its non-observance. So, for instance, there will be no breach of the "rule" involved in submitting that evidence not challenged in cross-examination should be rejected or disbelieved where the relevant witness had advance notice of the matter in issue, or where directly contrary material was already in evidence: Vines v Australian Securities and Investments Commission (2007) 73 NSWLR 451; [2007] NSWCA 75 at [61] (Spigelman CJ). It also follows that a decision as to the weight to be given to evidence not directly challenged in cross-examination does not necessarily raise a question of law: Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 at 426 (Hope and Glass JJA).
3. The course of reasoning adopted by the primary judge in relation to the duration of the appellant's condition is outlined above in dealing with the appellant's "three key issues". That reasoning involved the rejection of the appellant's claim to have had an adjustment disorder with the symptoms he described which persisted after the end of 1998, on the basis that his claim was inconsistent with the history of psychiatric symptoms he described in consultations in 2002 and with the fact he had worked successfully as a criminal solicitor for the ALS. Those two matters supplied an ample factual basis for concluding that the history of psychiatric symptoms the appellant commenced to give in 2008 was not accurate and that his claim should not be accepted.
4. It is clear from the structure of the primary judge's reasons that his Honour dealt first with whether the history of psychiatric symptoms the appellant gave in evidence was consistent with his work and medical history during and after his time as a police prosecutor. At that stage his Honour was "not concerned with medical opinions, but with the facts" (at [85]), referring to medical reports as evidence of the histories of psychiatric symptoms the appellant gave at various points in time. After considering the reliability of the evidence of the appellant and Ms Kang in general terms (see above at [45]), his Honour found at [131] that the appellant "had a transient episode of what could be described as an adjustment disorder at the time that he left the police force" but that his symptoms did not persist after the end of 1998. Once the appellant's evidence of his history of psychiatric symptoms was rejected, the expert opinions supporting his claim, which were based on that account of his symptomology, lacked any evidentiary foundation. The primary judge's subsequent consideration of those expert opinions at [137] to [144] was limited to the proper classification of the appellant's transient condition in late 1998, which his Honour found at [146] to have been an "adjustment disorder with anxiety and depression".
5. It was plain that the respondent challenged the appellant's evidence that his symptoms persisted after he commenced work with the ALS. It must also have been apparent that unless that evidence was accepted, the expert medical opinions on which the appellant relied would have to be rejected as based on an inaccurate account of the appellant's history of psychiatric symptoms. The psychiatric reports tendered by the respondent stated clearly that the foundations of the psychiatric opinions relied on by the appellant were potentially unreliable: see eg primary judgment at [91], [108]. No question of the contravention of the "rule" in Browne v Dunn truly arises: State Rail Authority of New South Wales v Brown (2006) 66 NSWLR 540; [2006] NSWCA 220 at [9] (Giles JA, Santow JA agreeing).

Whether denial of procedural fairness in making findings contrary to evidence not the subject of cross-examination (ground 6) or error in failing to consider relevant lay evidence (ground 7)

1. The written submissions in support of these grounds, which were addressed together, refer to the evidence of four witnesses: the appellant, Ms Kang, Mr Whayne Day, the appellant's brother, and Mr Nick Moir. The submission made in respect of the appellant, that he was not cross-examined "as to the symptoms he alleged he was suffering at the time of his resignation", is particularly difficult to understand, because the primary judge accepted the appellant's evidence in that respect.
2. As to Ms Kang, the submission that her evidence concerning the appellant's symptoms in and after 1998 was not challenged in cross-examination is simply not correct: it was squarely put to her that her recollection had "been assisted by [the appellant's] view about what his claim is" and that she was "tailoring [her] evidence to implicate events in 1998 as being causative of things that were happening in 2001". Specific objection is also taken to the primary judge's observation at [124] about the relative prestige of work as a solicitor and a policeman. Nothing follows from the fact the issue was not put to Ms Kang. The observation was an immaterial aside made in the context of a broader point about the implausibility of Ms Kang's evidence that she opposed the appellant's appointment to the magistracy, which his Honour regarded as one of several matters indicating that her evidence had been tailored with the input of the appellant and with a view to supporting his claim (at [129]).
3. The unchallenged aspects of Mr Whayne Day's evidence do not, in fact, appear to have been disbelieved. The primary judge set out parts of his evidence at [45]-[51] without adverse comment. But Mr Whayne Day's cross-examination established clearly that his recollection of the circumstances of the appellant's resignation was limited and that his contact with the appellant after the latter commenced work with the ALS in Taree was infrequent. Mr Moir's evidence is in a similar position. The respondent never suggested, either in cross-examination or submissions, that Mr Moir should be disbelieved as not credible, and the primary judge made no finding to that effect. It was, however, put to Mr Moir that the symptoms of psychiatric distress which the appellant was exhibiting at the time of his resignation from the magistracy were not present when he resigned from the police force, and that Mr Moir's contrary recollection was just "your best memory".
4. Neither Mr Whayne Day nor Mr Moir was in a position to give conclusive evidence about the appellant's psychiatric condition after he resigned from the police force. Each was challenged as to the reliability of his recollection of events which took place decades prior. Both gave evidence after the appellant had been cross-examined in relation to his inconsistent accounts of his symptoms and the consistency of his success as a lawyer for the ALS with the chronic adjustment disorder he claimed to have. In the circumstances there was no procedural unfairness involved in not affording the evidence of Mr Whayne Day and Mr Moir conclusive weight in determining whether the appellant's psychiatric symptoms persisted for an extended period after his resignation from the police force. That their evidence was "relevant" does not establish any error on the part of the primary judge, much less one of law.

Whether error in the primary judge taking into account his personal knowledge of various matters (ground 9)

1. This ground is directed to two observations in the primary judgment, in the nature of asides, which were based on the primary judge's personal knowledge of matters that were not put to the appellant in cross-examination. Neither should have been made: in addition to the obvious risk of this very objection, they were essentially irrelevant to his Honour's reasons. For the same reason, however, any error involved in making them was immaterial, and provides no basis for allowing an appeal.
2. The first related to the appellant's evidence that his problems with the police continue to prevent him from working effectively as a criminal lawyer. His Honour rejected that evidence as implausible, observing that the appellant "holds himself out as an expert in criminal law" and that if he continued to have serious problems interacting with police "one would think that he would seek to avoid that by taking up some other metier in the law such as conveyancing or personal injury litigation" (at [107]). He went on: Many ex-police officers become very good at personal injury litigation. One person that readily springs to mind is the late Judge Frederick Kirkham who had an extensive practice in the Compensation Court of New South Wales before being appointed to the Bench of this Court. There is no suggestion that that the plaintiff has sought to diversify his practice or to find work outside the law. He continues to press on with a criminal law [sic], and it would appear from the number of hours he works he does so quite successfully. If he only takes on limited work - say, guilty pleas - it is hard to see how he would be working up to 60 hours per week.
3. The appellant was cross-examined as to how he "represent[s] [himself] to the business world today" and as to the fact that whatever psychiatric symptoms he may have had, they did not stop him "from having a pretty successful legal career over the years". The essential aspects of the reasoning at [107] were that the appellant continued to practise, and hold himself out as, a capable and successful criminal lawyer, and that it was not possible to reconcile that fact with his continuing to suffer significant anxiety when he interacted with police. None of that depended on the primary judge's knowledge of the career of Judge Kirkham, or even on the proposition that "[m]any ex-police officers become very good at personal injury litigation."
4. The second was made in the course of assessing the plausibility of the evidence of Ms Kang that while working for the ALS at Taree, the appellant said he could "barely get in the door" of the police station to speak to clients. The primary judge reasoned at [122] that: 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.
5. That the appellant must have been "regularly visiting the Taree police station" while working as a defence lawyer for the ALS was both an obvious inference which did not require the primary judge to draw on his personal knowledge and consistent with the evidence of Ms Kang set out at [121]. The location of Taree police station, and that until very recently it shared a driveway with the courthouse, had no bearing on that analysis.

Whether error in failing to draw the correct inference from the respondent's failure to tender reports of Dr Snowdon (ground 10)

1. Dr Peter Snowdon, a psychiatrist, examined the appellant on behalf of the respondent in 2009. Dr Snowdon's report dated 21 December 2009 was contained in the tender bundle provided to the District Court but ultimately not tendered by either party. The respondent declined to tender it because Dr Snowdon had later produced a second report which counsel for the respondent conceded "doesn't assist my case".
2. The appellant makes two submissions about the consequences of the respondent's failure to tender Dr Snowdon's report. The first (which is not consistent with the appellant's statement of this ground) is that the report of Dr Dunn dated 3 May 2018 was "infected by the observations on examination by Dr Snowden" and accordingly should not have been admitted unless Dr Snowdon's report was tendered. While Dr Dunn's report makes reference to the "input" of Dr Snowdon, this submission appears to exaggerate the report's dependence on the latter's views: see primary judgment at [108]-[110]. In any event, no objection was taken on this basis at trial.
3. The second submission is that instead of simply ignoring "anything which hints at Dr Snowden's view(s)" (at [110]), the primary judge should have drawn an inference that Dr Snowdon's report "did not assist the respondent's case as a whole". (This submission presumably relates, like the submission made along these lines at trial, to the inference to be drawn from the failure to tender the second report.) The inference raised by a failure to lead evidence is one of fact, and permissive rather than mandatory: Ta Lee Investments Pty Ltd v Antonios [2019] NSWCA 24 at [137]. No point of law is raised merely by the fact that the primary judge declined to draw it.

Conclusion (grounds 5 to 10)

1. Each of these grounds should be dismissed.

Orders

1. The following orders should be made: 1. Dismiss the appeal. 2. Appellant pay the respondent's costs.
2. PAYNE JA: I agree with Meagher JA.
3. WHITE JA: I agree with Meagher JA.

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: 28 April 2021