Hahn v Commissioner of Police

Judgment 1The background to these matters is set out in Hahn v Commissioner of Police 2014 NSWIRComm 13 (Hahn (No 1)), a decision given on 10 April 2014: [1] Adam Hahn, David Wild, David Dee and Charles Jifkins, are all former New South Wales police officers. Each of them was medically discharged from the NSW Police Force on varying dates prior to 9 December 2011 as a consequence of an on duty injury or injuries. Each of them claim they are entitled to a lump sum benefit under the Crown Employees (Police Officers Death and Disability) Award 2005 ("the Award") by virtue of them suffering total and permanent disablement (or "TPD") as defined under the Award and by virtue of each being a member of an insurance scheme established pursuant to the Award known as the First State Super Scheme ("the Scheme"). Each of them has sought declaratory relief and consequential orders pursuant to s 154 of the Industrial Relations Act 1996 ("IR Act") aimed at securing the benefit each of them claim. A copy of the declaratory orders sought by each of the applicants is set out in Annexure A to this judgment. Annexure A constitutes part of this judgment. [2] The applications seeking declaratory relief name three respondents: New South Wales Police Force (which does not appear to be a juristic entity and should properly be the Commissioner of Police, he being the employer under s 85 of the Police Act 1990 for the purposes of any proceedings relating to non-executive officers held before a competent tribunal having jurisdiction to deal with industrial matters); Metlife Insurance Limited ("Metlife" or "second respondent"); and FSS Trustee Corporation ("FTC" or "third respondent"). [3] The first respondent, the Commissioner of Police, is the former employer of the applicants. Pursuant to cl 10.1 of the Award, NSW Police Force established the Scheme with the third respondent as trustee of the Scheme to pay the lump sum benefits prescribed by cll 7 and 8 of the Award. In about July 2005, under an insurance contract, the second respondent issued to the third respondent a policy of insurance to cover the liability of the third respondent under the Scheme. The policy was called the "Blue Ribbon Group Life Policy". [4] Metlife is resisting any involvement of the Industrial Court in determining whether the applicants have a claim to any lump sum benefits on three bases: (i) the right under the Award to such benefits had been extinguished ("No Relevant Award Rights Contention"); (ii) the Court has been expressly deprived of jurisdiction to make the declarations sought ("Jurisdiction of Commission Contention"); and (iii) that even if there was an extant right under the Award to the lump sum benefits, the declarations sought did not relate to an industrial matter. Accordingly, it was submitted no jurisdiction existed under s 154 of the IR Act to make the declarations ("Industrial Matter Contention"). [5] Metlife filed notices of motion in the Dee, Hahn and Wild proceedings, seeking to have the applicants' applications dismissed insofar as they sought relief against the second respondent. Metlife has filed no motion in the Jifkins' proceedings. It is clear, however, that the second respondent is seeking to have the Jifkins' application for declaratory relief dismissed essentially on the same bases it relies upon in the Dee, Hahn and Wild proceedings. Whatever the outcome in the Dee, Hahn and Wild proceedings will determine the outcome in relation to Jifkins. 2In Hahn (No 1) the Court determined Metlife's three contentions as follows: (1)Metlife was correct in submitting no accrued right existed under the Crown Employees (Police Officers Death and Disability) Award 2005 ("the rescinded Award") to pursue claims for benefits in relation to an on duty injury that was alleged to have resulted in a police officer suffering total and permanent disablement, such officer having been medically discharged prior to 9 December 2011; (2)Metlife was wrong in submitting the Court was expressly deprived of jurisdiction to make the declarations sought. The Industrial Court's power to make declaratory orders under s 154 of the Industrial Relations Act 1996 (the IR Act) was unfettered by s 146D of that Act; (3)As to Metlife's contention that the declarations sought did not relate to an industrial matter, Metlife chose not to address each of the orders sought in the applications for declaratory relief in order to show they were beyond power, but rather chose a global approach (at [82]). As there was no focus on the actual orders sought by the applicants in their applications the Court declined to determine Metlife's third contention. 3In Hahn (No 1) the Court concluded as follows: [92] At this stage of the proceedings I do not propose to make orders granting MetLife's applications, nor do I propose to dismiss them. I will allow the parties an opportunity to consider my reasons in this judgment and to decide what course they wish to take henceforth. [93] If the applicants wish to pursue their applications, or amended applications, seeking declaratory orders I will deal with them on the basis of my reasoning in this judgment including my understanding of the Court's powers under s 154 as I have outlined them subject, of course, to any further jurisdictional objections. [94] All four matters constituting these proceedings are listed for directions at 9.30 am on Monday 5 May 2014. [95] Costs are reserved. 4Following Hahn (No 1) the third respondent filed a notice of motion, later amended, seeking orders in the following terms: 1. Pursuant to Industrial Relations Commission Rules 2009 rule 2.5(4) and Uniform Civil Procedure Rules 2005 rule 36.16(3A) and alternatively rule 36.17 and alternatively the Court's implied or inherent powers, that the second sentence of paragraph 50 and the whole of paragraphs 3, 36 and 52 of the Court's reasons dated 10 April 2014 of medium neutral citation [2014] NSWIRComm 13: 1.1 be recalled. 1.2 alternatively, be supplemented by an order or notation to the effect that: The Court, on the application of the Third Respondent, notes that the matters in paragraph 3, 36, 50 and 52 of the Court's reasons dated 10 April 2014 are not conceded by the Third Respondent and were not findings of fact or conclusions of law intended to be binding on it. 1.3 alternatively, be supplemented by reasons clarifying their effect. 2. That this application be listed before his Honour Acting Justice Boland on 24 June 2014 at 10.00 am. 3. Costs of this application be costs in the cause. 5Adam James Hahn ("applicant"), one of the four former police officers seeking declaratory relief, also filed a notice of motion seeking an order that: 1. The applicant's proceedings be transferred to the Supreme Court of NSW pursuant to section 151 of the Civil Procedure Act 2005. 6Mr Hahn's ground in support of his motion was that: 1. It is more appropriate for the proceedings to be heard in the Supreme Court of NSW. 7In relation to the third respondent's motion: (1)The first respondent neither consented to nor opposed the motion. The Commissioner of Police, however, submitted: (a) The rules relied upon by FSS do not appear to provide this Court with the power to makes the orders sought; (b) The relevant passages are consistent with, and reflect, the decision in NSW v Maund / Maund v FSS Trustee Corporation [2013] NSWSC 183; (c) This is not the kind of situation in which courts recall passages of a judgment, which is usually because they contain an obvious and incontrovertible error. (2)The second respondent regarded the paragraphs about which the third respondent was concerned as "quite innocuous". However, it was "quite untroubled by those paragraphs remaining in the judgment in the general introductory way in which they are couched." (3)Senior counsel for Mr Hahn indicated he did not precisely understand the third respondent's concern, but raised the point that the third respondent had not identified a power on which the Court could make or accede to the trustee's motion. 8In relation to the applicant's motion: (1)MetLife opposed the motion to transfer the proceedings and submitted its original motion to dismiss Mr Hahn's application for declaratory relief now be granted. (2)The first respondent supported the applicant's motion and submitted MetLife's motion to dismiss the application for declaratory relief be dismissed. (3)The third respondent supported the applicant's motion to transfer proceedings and submitted MetLife's motion to dismiss the application for declaratory relief be dismissed.

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