Miller v Commissioner of Police NSW

CATCHWORDS : APPEALS - error of law - requirement that error of law be dispositive of appeal - COURTS - JUDGES - requirement that judicial power be exercised in resolution of "legal" controversy. (D) Government and Related Employees Tribunal Act 1980 (NSW) s 54 Police Act 1990 (NSW) Pt 8A, s 170, s 170(2)(c), s 186 LEGISLATION CITED : Police Regulation (Superannuation) Act 1906 (NSW) s 1(2) Supreme Court Rules 1970 (NSW) Pt 52A r 43 Workers Compensation Act 1987 (NSW) s 4, s 9(1), s 9A, s 9A(1), s 11A, s 11A(1) Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 FAI Traders Insurance Co Ltd v FAI Workers Compensation (NSW) Ltd and Ors (NSW Court of Appeal, unreported, 16 July 1996, BC9603498) Gardner v Dairy Industry Authority of NSW (1977) 52 ALJR 180 Minister Administering the Crown Lands Act v Deerubbin LALC (1998) 43 NSWLR 249 CASES CITED : R v Home Secretary; Ex parte Salem [1999] 1 AC 450 Secretary to the Department of Human Services v Magistrates' Court at Melbourne [2002] VSCA 171; (2002) 6 VR 140 Sun Life Assurance Co of Canada v Jervis [1944] AC 111 Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195 Victims Compensation Fund Corporation v District Court of New South Wales and Anor [2002] NSWCA 355 Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 PARTIES : Ian Cameron Miller (Appellant) Commissioner of Police NSW (Respondent) FILE NUMBER(S) : CA 41114/03 COUNSEL : B J Gross QC/ P Dailly (Appellant) B M J Toomey QC (Respondent) SOLICITORS : Walter Madden Jenkins (Appellant) NSW Police Service (Respondent)

LOWER COURT Government and Related Employees Appeal Tribunal (GREAT) JURISDICTION : LOWER COURT GREAT P15/02 FILE NUMBER(S) : LOWER COURT P Lynch (Chairperson); P Holder; J Dombroski JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41114/03 GREAT P15/02

MASON P McCOLL JA HAMILTON J

Thursday, 30 September 2004 Ian Cameron MILLER v COMMISSIONER OF POLICE NSW

The appellant, a Police Sergeant, was supervising four Police Officers at a random breath testing (RBT) location. During the operation, a motor vehicle driven by an off duty Police Officer was stopped at the location. An RBT was administered and a positive blood alcohol test recorded. Despite the positive test, the Police Officer was not arrested. An internal investigation was conducted into the incident. Each of the Officers involved was interviewed.

The appellant took sick leave for the period 10 March 2001 to 2 April 2001. He claimed "hurt on duty" benefits on the basis that he was suffering from a psychological injury which arose because of the manner in which the allegation involving him was investigated. The respondent rejected his claim. The appellant appealed to GREAT.

Before GREAT the respondent sought to tender through the investigating officers the records of interview (other than the appellant's) conducted during the investigation. The appellant objected to the tender of the records, relying upon s 170 of the Police Act 1990 (NSW), which renders a document brought into existence for the purposes of Part 8A inadmissible in evidence in any proceedings such as the GREAT hearing unless (inter alia) the document is one that a witness is willing to produce: s 170(2)(c).

GREAT concluded that s 170(2)(c) was satisfied by the respondent calling the investigating officer as a witness and his willing production of the documents. It found that the appellant had not suffered a compensable psychological injury. It also held that even if he had suffered a psychological injury it was wholly or predominantly caused by reasonable action taken on behalf of the employer with respect to discipline of the appellant: s 11A Workers Compensation Act 1987 (NSW). The appellant did not challenge the s 11A finding. He submitted that the appeal should be dealt with as a test case concerning the interpretation of s 170 of the Police Act 1990 (NSW).

HELD per McColl JA (Mason P and Hamilton J agreeing), dismissing the appeal:

1. For the appellant to succeed he had to show an error of law which vitiated GREAT's decision: Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156; Minister Administering the Crown Lands Act v Deerubbin LALC (1998) 43 NSWLR 249; Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195 referred to.

2. It is wrong for judicial power to be exercised in answering questions which are merely moot, theoretical, abstract, hypothetical and advisory: Victims Compensation Fund Corporation v District Court of New South Wales and Anor [2002] NSWCA 355 applied. Sun Life Assurance Co of Canada v Jervis [1944] AC 111; Gardner v Dairy Industry Authority of NSW (1977) 52 ALJR 180; Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564; FAI Traders Insurance Co Ltd v FAI Workers Compensation (NSW) Ltd and Ors (NSW Court of Appeal, unreported, 16 July 1996, BC9603498); R v Home Secretary; Ex parte Salem [1999] 1 AC 450; Secretary to the Department of Human Services v Magistrates' Court at Melbourne [2002] VSCA 171; (2002) 6 VR 140 referred to.

3. GREAT's unchallenged conclusion that even if the appellant had suffered a compensable psychological injury it was wholly or predominantly caused by reasonable action taken on behalf of the employer with respect to discipline of the appellant pursuant to s 11A of the Workers Compensation Act 1987 (NSW) is fatal to the success of the appeal.

4. A decision on the interpretation of s 170 was not capable of vitiating GREAT's decision.

a) Appellant's legal representatives to undertake that they will not look to the appellant for his costs of the appeal and that they will indemnify him in respect of the order that he pay the respondent's costs of the appeal. b) The undertaking referred to in 2(a) to be given in writing by being forwarded to the Registrar of the Court of Appeal within two working days of 30 September 2004.

c) Absent the undertaking referred to in 2(a) the Court will consider issuing a show cause notice under Part 52A r 43 to the appellant's legal representatives.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41114/03 GREAT P15/02

MASON P McCOLL JA HAMILTON J

Thursday, 30 September 2004 Ian Cameron MILLER v COMMISSIONER OF POLICE NSW Judgment

This is an appeal pursuant to s 54 of the Government and Related Employees Tribunal Act 1980 (NSW) from a decision of the Government and Related Employees Appeal Tribunal ("GREAT"). GREAT dismissed the appellant's appeal from a decision of the respondent refusing to classify a period during which the appellant had leave of absence in a way which would entitle the appellant to "hurt on duty" benefits. The appellant said he had suffered a psychological injury in circumstances to which I refer in greater detail below. 3 An appeal pursuant to s 54 is limited to questions of law. The appellant says the appeal raises the following issues:

(a) The interpretation of s 170 of the Police Act 1990 (NSW);

(b) The test to be applied to determine "injury" or "disease" for the purposes of determining whether the appellant was "hurt on duty" within the meaning of s 1(2) Police Regulation (Superannuation) Act 1906 (NSW) and s 4 Workers Compensation Act 1987 (NSW).

Legislative framework 4 Section 186 of the Police Act 1990 provides a right of appeal to GREAT against a decision of the respondent to grant or refuse leave of absence on full pay to a police officer during any period of absence caused by that officer being "hurt on duty" within the meaning of s 1(2) of the Police Regulation (Superannuation) Act 1906. The definition of "hurt on duty" in s 1(2) of that Act is: " "hurt on duty", in relation to a member of the police force, means injured in such circumstances as would, if he were a worker within the meaning of the Workers Compensation Act 1987, entitle him to compensation under that Act; …" 5 Section 9(1) of the Workers Compensation Act 1987 provides that a worker who has received an injury whether at or away from his place of employment shall receive compensation from the worker's employer in accordance with the Act. 6 Section 9A of the Workers Compensation Act 1987 relevantly provides: "9A(1) No compensation is payable under this Act in respect of any injury unless the employment concerned was a substantial contributing factor to the injury." 7 Section 11A(1) of the Workers Compensation Act 1987 provides: "11A(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers."

Statement of the case 8 On Friday 9 March 2001 the appellant, a uniformed Police Sergeant who worked as a mobile supervisor at the Leichhardt Local Area Command, was part of a complement of five Police Officers who were carrying out random breath testing (RBT) in Victoria Road, Rozelle. The appellant was the supervisor at the location. The other four Police Officers were Probationary Constable Chisholm, Probationary Constable Parnell, Constable Semple and Constable Beardsley. 9 At some time between 1 and 2 am a motor vehicle being driven by an off duty female Constable (Senior Constable Anderssen) was stopped by the Police at the RBT location. An RBT was administered by Probationary Constable Chisholm. She recorded a positive blood alcohol test of 0.135. Despite the positive test, Senior Constable Anderssen was not arrested. She parked her vehicle and arranged to be collected by another Police Officer who took her home. 10 At some time after 5:40 pm on the evening of 9 March 2001, Internal Affairs Police Officers along with Detective Inspector Gilroy from Ashfield Local Area Command and Duty Officer Walton from Leichhardt Local Area Command, arrived at Glebe Police Station where the appellant was on duty. Following their arrival the appellant and the other four Police Officers (Chisholm, Parnell, Semple and Beardsley) went, by direction, to the meal room of Glebe Police Station. They were taken, at intervals, to be interviewed in relation to the allegation that Senior Constable Anderssen was not arrested but had been allowed to leave the RBT location despite the positive RBT test. 11 The appellant was interviewed in relation to the specific allegation that he had knowledge of Probationary Constable Chisholm's inaction and had, himself, failed to take action. The appellant, after having been given a criminal caution, answered the questions voluntarily. He denied that he was aware that anything untoward had happened at the RBT site in relation to Senior Constable Anderssen. At the conclusion of the appellant's interview, the appellant was directed to terminate his shift and return to duty on his next rostered shift, the following Friday morning 16 March 2001. The appellant's request to finish his shift was refused. 12 The appellant took sick leave because of mental stress for the period 10 March 2001 to 2 April 2001 inclusive. He went to work on the morning of 16 March 2001 as instructed but was informed he was going to be placed on restricted duties until the investigation was completed. He returned home and continued on sick leave. He formally returned to work on 2 April 2001. 13 On 12 March 2001 the appellant attended his family doctor, Dr Howard, who concluded that the appellant was suffering from anxiety and stress rendering him unfit for work. Dr Howard certified that the appellant was fit to return to work as at 30 March 2001. The appellant claimed "hurt on duty" benefits for the period 10 March 2001 to 2 April 2001 inclusive. He said his anxiety and stress was a psychological injury which arose because of the manner in which the allegation involving him was investigated. 14 On 1 February 2002 the respondent refused to classify this period as being due to the appellant being "hurt on duty" on the basis that any injury the appellant may have suffered was wholly or predominantly caused by the reasonable actions of his employer with respect to discipline following the RBT incident: s 11A of the Workers Compensation Act 1987 (NSW). The appellant appealed to GREAT. 15 Before GREAT the respondent sought to tender through Inspector Walton and Detective Inspector Gilroy the records of the interviews conducted during the investigation of the alleged misconduct. Four of the Police Officers who gave records of interview (Chisholm, Semple, Anderssen and Parnell) did not give oral evidence in the GREAT proceedings. They were neither witnesses nor, apparently, willing to produce their records of interview. The fifth Police Officer, Senior Constable Beardsley, gave oral evidence in the appellant's case and did not object to the tender of the record of her interview. The document was tendered as part of the appellant's case and became exhibit 11 (Black 211H-P).

16 It was common ground before GREAT that each of the records of interview was a document brought into existence for the purposes of Part 8A of the Police Act 1990 (NSW) and that Inspector Walton and Detective Inspector Gilroy would each be called as a witness and each was willing to produce each record of interview.

17 The appellant objected before GREAT to the tender of the records of interview, relying upon s 170 of the Police Act 1990 (NSW). That section renders a document brought into existence for the purposes of Part 8A inadmissible in evidence in any proceedings such as the GREAT hearing unless (inter alia) the document is one that a witness is willing to produce: s 170(2)(c). 18 The appellant asserted that the word "witness" in s 170(2)(c) should not be accorded its literal meaning, but should be read down so that it applied only to a witness who was the person whose record of interview was the subject of the tender and who was willing to produce that document. 19 GREAT concluded that s 170(2)(c) was satisfied by the respondent calling the investigating officer as a witness and his willing production of the documents. 20 The respondent tendered the records of interview to establish that, if the appellant had suffered an injury, that injury was wholly or predominately caused by reasonable action taken by the respondent with respect to the appellant's discipline.

21 GREAT found that the appellant had not suffered a compensable psychological injury. The appellant seeks to challenge that decision. 22 Before GREAT the appellant contended that the investigation and the sequence of events following Inspector Walton's interview could not be properly characterised as action taken by or on behalf of an employer with respect to discipline so that s 11A had no application. 23 GREAT rejected that submission and held that even if, contrary to its finding, the appellant had suffered a psychological injury, it was satisfied that such injury was wholly or predominantly caused by reasonable action taken on behalf of the employer with respect to discipline of the appellant: s 11A Workers Compensation Act 1987. The appellant does not challenge GREAT's ruling on this issue. 24 The question whether GREAT's interpretation of s 170 was correct occupied the substantial part of the hearing of the appeal. It was, in fact, a false issue. GREAT's unchallenged conclusion on the s 11A issue in favour of the respondent is fatal to the success of the appeal. 25 Mr Gross QC suggested that the parties were united in their desire to have the Court decide the issue of the interpretation of s 170 as they regarded the appeal as a test case. Mr Toomey QC refuted that proposition. Even if he had not, there are two reasons why the Court would not entertain this appeal. 26 First, for the appellant to succeed, he had to show an error of law which vitiated GREAT's decision: Yates Property Corporation Pty Ltd (in liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 177; see also Minister Administering the Crown Lands Act v Deerubbin LALC (1998) 43 NSWLR 249 at 254 - 255; Terrace Tower Holdings Pty Limited v Sutherland Shire Council [2003] NSWCA 289; (2003) 129 LGERA 195 at [30]. A decision on the interpretation of s 170 was not capable of vitiating GREAT's decision.

27 Secondly, the Court would not deliver what would, in effect, be an advisory opinion on an issue which had become moot. Courts do not entertain appeals on questions which would "produce no foreseeable consequences for the parties": Gardner v Dairy Industry Authority of NSW (1977) 52 ALJR 180 at 188 per Mason J (with whom Jacobs J and Murphy J agreed); app Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 582 (per Mason CJ, Dawson, Toohey and Gaudron JJ) and which are, therefore, academic: Sun Life Assurance Co of Canada v Jervis [1944] AC 111 at 113-114; FAI Traders Insurance Co Ltd v FAI Workers Compensation (NSW) Ltd and Ors (NSW Court of Appeal, unreported, 16 July 1996 per Handley JA with whom Beazley JA agreed, BC9603498); R v Home Secretary; Ex parte Salem [1999] 1 AC 450 at 457; Secretary to the Department of Human Services v Magistrates' Court at Melbourne [2002] VSCA 171; (2002) 6 VR 140 at 147 [19]. 28 As Heydon JA (with whom Sheller JA and Einstein J agreed) said in Victims Compensation Fund Corporation v District Court of New South Wales and Anor [2002] NSWCA 355 at [27], it is wrong for judicial power to be exercised in answering questions which are "merely moot, theoretical, abstract, hypothetical and advisory". His Honour continued: "A judicial determination "involves a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy": Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at [45] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ. Here there was a controversy, but it was not one which could be quelled by any particular outcome of the debate about s 30(3): the controversy had already been quelled by the findings negating shock and by the second opponent's abandonment of any challenge to them. And at [47] in Bass's case the court said: "Because the object of the judicial process is a final determination of the rights of the parties to an action, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions." The question of what s 30(3) meant was only hypothetical, because it rested on the hypothesis that there was shock, and the second opponent had not proved this. The opinion offered on the hypothetical question was only advisory, because there was no "immediate right, duty or liability to be established by the determination of the Court" in the sense in which those words were used in In Re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265 per Knox CJ, Gavin Duffy, Powers, Rich and Starke JJ. 29 To adapt his Honour's statement: there was a controversy in this case as to whether the appellant qualified for "hurt on duty" compensation. That controversy could not be quelled by the interpretation of s 170. It had already been quelled by GREAT's conclusion that it was satisfied that any injury the appellant had suffered was wholly or predominantly caused by reasonable action taken on behalf of the employer with respect to discipline of the appellant and by the fact the appellant did not challenge that finding. 30 The short point is that the appeal is academic and should be dismissed with costs. 31 As to the costs order, I am concerned that the appellants' legal representatives ought to have been aware that, absent a challenge to GREAT's conclusion on the s 11A point, the appeal was futile. The point was flagged in the respondent's submissions. The appellant's legal representatives ought, in any event, to have been aware of the principles to which I have referred. 32 In such circumstances I request an undertaking from those lawyers that they will not look to the appellant for his costs of the appeal and that they will indemnify him in respect of the order that he pay the respondent's costs of the appeal. If such an undertaking is to be proffered it should be given in writing within two days of this judgment by being forwarded to the Registrar of the Court of Appeal. 33 Absent that undertaking, in my view, the Court should consider issuing a show cause notice under Part 52A r 43 to the appellant's legal representatives. 34 HAMILTON J: I agree with McColl JA.

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