Morley v SAS Trustee Corporation

Industrial Relations Act 1996 s 188 LEGISLATION CITED: Superannuation Administration Act 1996 s 88 Police Regulation (Superannuation) Act 1906 s 10B Police Act 1990 ss 13, 14

Boland v SAS Trustee Corporation (1999) 97 IR 127 Griffiths v Haines [1984] 3 NSWLR 653 CASES CITED: Morley v SAS Trustee Corporation [2006] NSWIRComm 320 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 SAS Trustee Corporation v Daykin (2002) 115 IR 172

APPELLANT: Mr R W Seton SC Mr M J Walsh of counsel

SOLICITORS: Ms Kim Howard Smith Oates & Smith Solicitors LEGAL REPRESENTATIVES: RESPONDENT: Mr P Menzies QC Mr T Ower of counsel

SOLICITORS: Mr Brian Matthews SAS Trustee Corporation

CORAM: WRIGHT J, President WALTON J, Vice-President Boland J

Application by Christopher Morley for leave to appeal and appeal against a judgment of Justice Staff given on 12.10.2006 in matter no. IRC 2943 of 2005

1 This matter concerns an application for leave to appeal pursuant to s188 of the Industrial Relations Act 1996 ("the Act") and, if granted, an appeal against the order of Staff J of 12 October 2006 dismissing the appellant's appeal pursuant to s88 of the Superannuation Administration Act 1996 ("SA Act"): Morley v SAS Trustee Corporation [2006] NSWIRComm 320. 2 The central matter appealed against is his Honour's construction of s10B of the Police Regulation (Superannuation) Act 1906 ("PRS Act"), in particular s10B(2BA), and his Honour's application of that construction to determine the appellant's entitlement under the PRS Act to a superannuation pension. Background

3 The appellant was a member of the New South Wales Police Service who was medically retired on 31 January 2002 when he was issued with a Certificate of Medical Incapacity by the Police Superannuation Advisory Committee ("PSAC") under s10B of the PRS Act to the effect that the appellant had a specified infirmity of major depressive illness with melancholia. PSAC did not accede to the appellant's request to also include specified infirmities of "injury to the back", "injury to the right leg" and "injury to the left leg" in the certificate. Had PSAC included these infirmities or had the appellant's appeal been successful, the appellant would have received an increased superannuation allowance. 4 Certain factual matters which were not in contest relating to the appellant's infirmities were set out by Staff J in the following terms (at [9]):

(i) on 19 April 1995, the appellant suffered a musculo-ligamentous strain at his lumbar spine as a result of an injury he suffered in the course of a fall whilst carrying boxes of paper upstairs at work. (ii) on 6 July 1995, the appellant completed a "Claim for Hurt on Duty Benefits" pursuant to s 12D of the PRS Act for permanent impairment to his back and legs; (iii) on 11 July 2000, the appellant served his last day of active duty; (iv) on 19 July 2000, the appellant made an application for medical discharge and amongst the medical conditions claimed were "back pain; leg pain"; (v) the respondent sought expert advice from a number of doctors by requests in the form of letters; (vi) on 26 June 2003, the respondent made the following determination in regard to the appellant's s 12D claim by the payment of a gratuity founded upon his permanent impairment as follows: (a) 11.5 per cent permanent impairment of his back; (b) 2.5 per cent loss of left leg at or about the knee; (c) 3.5 per cent loss of right leg at or above the knee;

(vii) on 31 January 2002, being the date of the appellant's medical discharge within the meaning of s 10B of the PRS Act, the appellant was incapable of discharging the duties of his office as a Superintendent of Police due to the infirmity of major depressive illness with melancholia;

(viii) that the appellant would receive an increased superannuation allowance if the appeal was successful.

5 While these factual findings are not in dispute, the parties disagree as to the application of the applicable statutory provisions to the factual circumstances.

6 Before turning to consider matters the subject of the appeal, it is necessary to identify the relevant statutory provisions. The critical provision for this appeal is s10B of the PRS Act, which relevantly provides: 10B Medical examination of disabled member and determination of whether hurt on duty

(1) An annual superannuation allowance shall 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 the member at the time of the certification, of discharging the duties of the member's office. (2) An annual superannuation allowance shall not be granted under section 10 to a former member of the police force who resigned or retired unless: (a) the former member notified the Commissioner of Police before the member's resignation or retirement and within 6 months of receiving the injury which has caused the member's infirmity of body or mind, of that injury, (a1) where the regulations so require, the notification was in or to the effect of the prescribed form, and (b) STC (having regard to medical advice on the condition and fitness for employment of the member) has certified that the former member was 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.

(2A) STC may certify that a member of the police force is incapable of discharging the duties of the member's office only if the member is incapable of discharging the duties of the office in the police force in which the member is then employed and also any other office in the police force: (a) which is available to the member, (b) which is not lower in rank than the office in which the member is then employed, and (c) in which it would be reasonable to expect the member to be employed.

(2B) STC may certify that a former member of the police force was incapable of discharging the duties of the member's office if the member was incapable of discharging the duties of the office in the police force in which the member was employed at the time of the member's resignation or retirement and also any other office in the police force: (a) which was available to the member at that time, (b) which was not lower in rank than the office in which the member was then employed, and (c) in which it would have been reasonable to expect the member to have been employed.

(2BA) For the purposes of subsections (2A) and (2B), the duties of the office in the police force in which a member of the police force is then or was employed includes (but is not limited to) the duties of a police officer referred to in section 14 (1) of the Police Act 1990 .

7 The focus in this matter was on s10B(2BA), which refers to s14(1) of the Police Act 1990. Section 14(1) provides:

(1) In addition to any other functions, a police officer has the functions conferred or imposed on a constable by or under any law (including the common law) of the State. 8 The oath of office of a police officer was also referred to by the parties in this matter, which is dealt with in s13 of the Police Act in the following terms: 13 Oath to be taken by persons exercising police functions

(1) Before a person exercises any of the functions of a police officer, the person must take the oath or make the affirmation of office as a police officer in accordance with the regulations. (2) A police officer is not required to take a further oath or make a further affirmation after a change in the officer's position in the NSW Police Force, so long as the officer remains in the NSW Police Force.

9 The appellant's appeal against the respondent's determination under s88 of the SA Act was heard by Staff J by way of a hearing de novo and oral evidence was given by the appellant and other witnesses, including doctors and police witnesses. In the decision given on 12 October 2006, Staff J dismissed the appeal on the basis that the appellant could not have satisfied the test that he was incapable of discharging the duties of office of a superintendent because of his back condition and injury to his legs as at the date of his medical retirement. 10 Staff J made this decision on the following grounds:

(a) the relevant provision was s10B(2A) of the PRS Act and there are two parts to the test. First, an incapability of discharging the duties of office and, second, that the appellant was incapable of discharging the duties of any other office.

(b) it was unnecessary to answer the second question as there was no serious contest in respect of the issue;

(c) in determining the duties of office, the newly enacted s10B(2BA) applied and, accordingly, it was necessary to look at the duties of office and s14 of the Police Act together with the principles emerging from the cases cited;

(d) in approaching this question, the proper approach is to treat the appellant as holding the office of Superintendent at Deniliquin at the time of his medical retirement and construe s10B in light of s14 of the Police Act and the observations of Hungerford J in Boland v SAS Trustee Corporation (1999) 97 IR 127. In this regard, Staff J stated: [36] The question that arises is did the injury to the appellant's back and legs affect the performance of his duties as a Superintendent, having regard to the nature of the duties as revealed in the evidence, which I will discuss shortly, read in light of s14 and the cases referred to in these reasons.

[37] It seems to me were this not the case, then it would be unnecessary to consider the specific duties of office because all that would be required to be done was for any officer to contend that his/her duties of office included operational aspects. For example, the inability to apprehend offenders by an officer because of an infirmity of body or mind would thus render the officer incapable of discharging the duties of the member's office. He would be duly certified under s10B and discharged.

(e) the appellant's duties of office were to be approached in the following way: 93 The appellant held the position of Superintendent at Deniliquin. If the duties of a constable are incorporated into the duties of every police officer, in my view, such duties would be carried out by a Superintendent of Police on a more strategic than a tactical basis. It is necessary to take a more practical approach in resolving this issue and to concentrate on what in practice occurred in relation to the duties of office of the appellant. For the purposes of this examination, I take the relevant date as being the last date of active service of the appellant.

94 There was little dispute between the parties in respect of the duties of office of the appellant when he held the position of Local Area Commander at Deniliquin. I have earlier referred to the duties as set out in JSR 03. Mr Crandell, the current Local Area Commander acknowledged that JSR 03 sets out the duties that he currently undertakes in that position, although the geographical area of the Command has been reduced since the appellant held the position. It is significant that this document does not refer to any physical duties which, on the evidence, could comfortably be said to impact on the appellant's physical incapacity in his back.

97 However, the only example of physical activities that the appellant was able to give was that his back condition prevented him from undertaking was assisting officers in the gathering up of exhibits, especially large exhibits.

98 The appellant accepted that in respect of his example, the work was being performed, albeit not by him, but being done under his supervision. The appellant had under his command an authorised strength of 110 officers and the ability to delegate. In my view, the duties were clearly being performed and there was no real requirement for the appellant to carry out the physical work involved with a search because there were other officers there to do it. If the new section prevails, in any event, this would fall into the category of calling upon another officer to assist. On the evidence, looking at the practical necessities of the duties of a Superintendent, the physical aspect does not appear to me to arise, except in respect of the driving of a motor vehicle. It was agreed between the parties that the driving undertaken by the appellant was extensive, being somewhere in the range of approximately 8,000 kilometres a month. The appellant's evidence was that at the end of long trips and also during long trips, he would experience occasional back pain and discomfort. The appellant could drive and the evidence has to be considered in its totality. At no stage did he ever have to suspend his duties because of that pain. He could only recall one trip that he did not undertake because of his back pain. It was postponed to a later time.

99 Although the appellant adopted what he described as a high profile in his role, this did not necessitate a requirement for physical duties, apart from his presence. He acknowledged that this role did not involve arresting anyone. In the three years that he was Superintendent, he could only recall two occasions when he wore his Appointments and walked down the street with fellow officers as a show of force. I do not regard this as a physical duty that was beyond his capacity even accepting his back condition.

100 On the evidence, and I find, the relevant duties of office of the appellant did not have a significant physical component. Any potential physical component was within the appellant's capacity given the resources at his disposal. In light of the appellant's position of Superintendent, he was not required to use physical exertion to discharge the "functions conferred or imposed on a constable" as prescribed by s 14 of the Police Act .

(f) the disability flowing from his back condition was minimal for the following reasons: [101]… It is necessary to examine whether the appellant's back condition was incapacitating for the duties of office of a Superintendent which included a significant amount of driving. In my view, it is appropriate once again to take a practical approach in determining this question. As I have earlier indicated, I am troubled by some aspects of the appellant's evidence, particularly in respect of the extent of his incapacity. On occasions, his evidence was vague and unconvincing. The appellant had only undertaken one consultation with his general practitioner and had one chiropractic consultation in respect of his back condition over a period of five years. He has not independently visited an orthopaedic surgeon in respect of his back condition, nor were any x-rays taken of his back between April 1995 and the beginning of 2000. Although the appellant thought that the chiropractor may have taken x-rays of his back, I find this evidence unconvincing. At no subsequent consultation with any of the orthopaedic surgeons who examined him in respect of his application to have his back condition included on a certificate of incapacity, did he mention or make any reference to x-rays being taken.

102 This raises, in my mind, real doubts as to the significance of the appellant's back condition. There is no material in the contemporaneous medical reports provided at the time that the appellant was suffering from psychological problems that led to his retirement on medical grounds, that indicate he had a back condition as well. In his consultation with Dr McGee, the appellant only referred to his psychological or emotional condition which was affecting his day to day policing. He did not refer to any other physical problems. The appellant went so far as informing Dr McGee that he had no difficulties at the Police Station where he was stationed and that his fellow officers were genuinely very good and supportive of him. Similarly, when he saw Dr Douglas, he only referred to his emotional problems, although he described his past medical history which included a hernia operation and an appendectomy. However, there was no reference to his back condition. Had the back condition been as significant as is now contended by the appellant, it is difficult to understand why it was not mentioned.

103 I am prepared to accept the appellant's evidence that he experienced physical symptoms of pain whilst driving, or after driving long distances and this occurred up until the last day of his employment. However, the reason for his medical retirement was for psychological reasons. Despite the physical symptoms of pain from his back, the appellant's evidence was that he still rides a motor bike. Dr Wallace, in particular, was quite amazed at this and maintained that it was something that he would have asked the appellant about. Any reference to riding a motor bike was absent from Dr Wallace's report.

104 I am driven to the view that the appellant's disability flowing from his back condition was minimal. I reach this conclusion, particularly in light of the evidence given by Dr Evans that the appellant informed him that if it was just his back condition, he would continue working. Dr Evans was cross-examined about the preparation of his medical reports which, with the exception of his opinion, were dictated in front of the patient. I reject the appellant's evidence where it is in conflict with that of Dr Evans.

105 Mr Ower conceded that the Court could conclude, in light of the payment of the s 12D gratuity, that the appellant had a partial incapacity if I was to accept that frontline policing was part of the appellant's duties of office. This was despite Dr Evans and Dr Barrett when examining the appellant, forming the view that he was fit to carry out the duties of a Superintendent. Neither completely resiled from this opinion when asked to take into account that the appellant had received a s 12D gratuity based on 11.5 per cent incapacity in his back, 2.5 per cent in the left leg and 3.5 per cent in the right leg. However, when asked whether the appellant, with these disabilities would be capable of undertaking operational police work, their evidence was that he would be unfit for such work. (f) the causal nexus between the appellant's incapacity and his infirmity of body was not shown as the appellant's position as a Superintendent did not require physical exertion to discharge the "functions conferred or imposed on a constable" as prescribed by s14 of the Police Act . Staff J approached this in the following way: 106 In order to resolve the issue of incapacity, I propose to take a practical, rather than a theoretical approach to the issue of incapacity. In my view, a critical question for determination is whether there was a frontline policing aspect to the duties that the appellant was required to undertake in his role as Superintendent. The overall duties that the appellant was required to carry out in his role as Superintendent, which is also consistent with the evidence of Mr Crandell, was that that his duties were largely supervisory and non-physical duties. It must be accepted that there was a potential for this to occur, but on the evidence, there was only one example that the appellant could recall which could be said to fall into the description of frontline policing. In SAS Trustee Corporation v Daykin , the Full Bench stated at [24] - [25]: [24] We consider that an approach to the PRS Act which attributed to its purposes such short term remedies would be to misapply the statute. In Adams v State Authorities Superannuation Board Cullen J (unreported, 90/551, 5 December 1991), described infirmity, the basal aspect of the statute whether it be a long or short term condition claimed to justify a certificate, as "a physical or mental condition which prevents a member of the Police Force, for the foreseeable future, from discharging the duties of a police officer". This, we think, correctly portrays the primary intention of the PRS Act. While in theory an applicant may be free to bring a claim under this Act in respect of an obviously short term condition which might prevent the member working, the need to establish an infirmity with the longer temporal connotation means that such an application would be unlikely to be able to satisfy the Act's requirements. [25] What, then, is the position where an applicant has more than one condition which affects the capability to work? The answer lies in the words of the relevant sections, namely ss8 and 10B. The member must be incapable, from infirmity of body or mind, from discharging the duties of the office (s8). This does not require that the infirmity be attributable to a single condition; whether it is, or whether there are in existence other features which, taken together or separately, mean that the member has the necessary incapability, is a question of fact to be determined in each case. 107 Their Honours went on to observe that it is necessary to focus upon the fact that each of the conditions suffered by the appellant was sufficient to entitle him/her to a finding that he was incapable of performing the duties of his office. Their Honours noted there is no room for the operation of any partial incapacity approach. The statutory regime requires that the applicant be found either incapable or not incapable of performing the duties for, in effect, the foreseeable future. 108 In my view, it is necessary for the incapability to be based on the notion of being relatively permanent. In this matter, the requirement for the appellant to undertake frontline policing would be very rare indeed. I therefore find, the physical condition being that reflected in the s 12D gratuity did not prevent the appellant as a member of the Police Force from discharging the duties of a Police Officer. Any potential physical component was within the appellant's capacity given the resources at his disposal. In my view, because of the appellant's position, he was not required to use physical exertion to discharge "the functions conferred or imposed on a constable" as prescribed by s 14 of the Police Act. 109 I find the extent of the appellant's disability flowing from his back condition is minimal and would not have incapacitated him for his duties of office, even if those duties were more physically arduous than has emerged in the evidence. Such duties could partially incapacitate the appellant from time to time for frontline policing, however, as was observed in Daykin , there is no room for the operation of any partial incapacity approach. The focus of the appellant's case was in respect of the injury to his back. There was little evidence that the injury to the appellant's legs incapacitated him from his duties of office. Taken together, the appellant's disability is minimal and would not have incapacitated him from performing his duties of office as a Superintendent.

11 In his amended notice of appeal, the appellant has appealed on the basis that Staff J erred in the following respects:

(a) in his construction of s10B(2BA) of the PRS Act by failing to take into account the duties of a police officer conferred or imposed on a constable pursuant to s14 of the Police Act ;

(b) in the application of s10B of the PRS Act to the circumstances of the appellant's appeal by taking account only of the appellant's actual duties performed and not also those duties he might be called on to perform at any time as a superintendent;

(c) his Honour erred by applying the wrong test as to incapability of discharging the duties of the appellant's office in holding that the appellant's ability to delegate or to seek help from other officers so as to overcome any inability to perform a duty did not amount to an incapability of discharging that duty;

(c) in dismissing the appellant's appeal to the Court below in that there was no evidence to support the conclusion that the appellant's disability would not cause him to be incapable of discharging the duties of his office as defined by s10B of the PRS Act; and

(d) by misapplying the principles laid down by the Full Bench in SAS Trustee Corporation v Daykin (2002) 115 IR 172 in that his Honour confused the partial incapacity to perform duties brought about by a single infirmity (referred to in Daykin ), with the intermittent but permanent or longstanding inability to perform duties. 12 In support of these grounds, the appellant made the following submissions:

(a) a simple construction of this section makes it clear that, even without reference to the Explanatory Note to the Bill, the purpose of the amendment was to adopt the approach of Hungerford J and not that of the majority in Boland . That is, the section makes clear that the duties of the office of any member of the police force (and here that includes the office of a superintendent) "includes (but is not limited to) the duties of a police officer referred to in s14(1) of the Police Act 1990". In other words, regardless of what the duties of a superintendent might be, his duties also include that of a police officer referred to in s14(1) of the Police Act .

(b) This approach is confirmed by reference to the Explanatory Note to the Superannuation Amendment Bill 2006.

(c) Accordingly, Staff J was in error when he found that to the extent the appellant had any physical limitations due to his back injury he could have effectively delegated the task to an underling and when he referred to the oath of office as supporting this approach. The amendment does not permit the Court to have regard to the police officer's oath of office (which contemplates performance to the best of the officer's skill, knowledge and power). Rather, it requires the Court to have regard to, inter alia , the duties conferred or imposed on a constable.

(d) Staff J should have considered the causal nexus between the appellant's incapability, flowing from his back/leg infirmity to perform the duties of a police officer as both a superintendent and also a constable but did not do so. This is evident from the penultimate paragraph of the judgment: Finally, it should be observed that the situation may well have been different if the duties of office were those of a general duties police officer.

(e) Staff J erred in considering the duties of a superintendent because he only took into account the actual duties performed by the appellant as opposed to also the potential duties he might have been called upon to perform. The operational duties of any police officer were far more demanding than the ones the appellant actually performed and the appellant's ability to avoid or delegate such duties was not a relevant consideration for Staff J. Application of s10(2BA) to the facts (f) If Staff J considered the potential operational duties which the appellant may have been required to perform either as a superintendent or a constable, the medical evidence of both of the respondent's doctors was relevant, namely that the appellant's physical incapabilities would have rendered him unfit for work of an "operational nature".

(g) Staff J erred in his application of Daykin by not finding that an officer's occasional inability to perform some of the functions of his office that would be sufficient to prove the causal nexus required by s10B(3)(a) so long as that inability exists on a permanent or longstanding basis. Staff J erred in finding: Such duties could partially incapacitate the appellant from time to time from frontline policing, however, as was observed in Daykin, there is no room for the operation of any partial incapacity approach.

(h) Staff J erred in failing to take into account the admissions by the respondent's doctors that if the percentage impairment of the appellant's back and legs was as determined by the respondent then the appellant would have had difficulties in carrying out the duties of an operational police officer. 13 In summary, the appellant contended that when applied to the facts, the correct construction of the section and the correct principle laid down by Daykin, the appeal before Staff J should have succeeded and, on that basis, the appellant sought orders for the setting aside of the judgment of Staff J and the amendment of the appellant's s10B(2BA) certificate to include reference to his back and leg infirmities. 14 The respondent made submissions addressing each of the issues identified by the appellant. In summary, the respondent submitted:

(a) Staff J did not err in taking the officer's oath of office into account for two reasons. First, Hungerford J referred to the relevance of the oath of office in his judgment and the legislature was cognisant of the judgments in Boland in making the amendment. Secondly, the oath of office under s13 of the Police Act is a prerequisite to the exercise of any function of a police officer, including the functions of a constable referred to in s14 of the Police Act . The fact that the appellant occupied a strategic, supervisory position within the NSW Police service and could (and was expected to) delegate physical duties to others was a practical consideration that Staff J properly considered.

(b) the mischief arising from Boland's case that the legislature sought to cure by adding s10B(2BA) was absent from the appellant's case because of his superior rank. An officer holding the rank of constable could be personally required to carry out general duties policing, however, it would be fanciful to have the same expectations for an officer holding a much higher rank.

(c) the amending Act added s10B(2BA) to the PRS Act and did not remove ss 10B(2A) or (2B), which both require an examination of the specific duties of office. Any examination of the specific duties of office is unnecessary if the appellant's argument is correct. Staff J properly acknowledged the fact that he was obliged to give meaning to all of the words of s10B and not simply the added subsection.

(d) Despite incorporating the functions of a constable, the "duties of office" will clearly differ from officer to officer; particularly when the rank of an officer is taken into account.

(e) His Honour's construction of s10B(2BA) is to be preferred as it allows the balance of the section to operate harmoniously and logically. It is trite law that a "contextual" approach such as this is the overriding principle of modern statutory interpretation: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382.

(f) His Honour first considered the specific duties of a superintendent, as he was bound to do pursuant to s10B(2BA). Extensive driving was found to be the most arduous physical part of those duties and he rejected the contention that there was any other significant physical component.

(g) His Honour then considered the appellant's requirement under s10B(2BA) to discharge the functions of a constable under s14 of the Police Act and found, consistent with Hungerford J's decision in Boland that, within the context of the appellant's position as superintendent there was no requirement for him to use physical exertion to discharge those functions. (h) It is evident that his Honour examined the evidence from both the perspective of the actual duties of office of a superintendent and the functions of a constable pursuant to s14 of the Police Act . Accordingly, his Honour carried out the correct statutory enquiries.

(i) It is patently clear from his Honour's judgment that he was aware that the Daykin test required him to decide whether there was a causal nexus between the alleged infirmity and the appellant's incapability to perform his duties of office.

(j) His Honour made findings as to having real doubts as to the appellant's claims of incapacity and there was abundant evidence for these doubts arising out of the appellant's own evidence and that of Dr Evans. It was open to his Honour to accept that evidence as a basis for the findings on this issue. As such, his Honour's findings do not constitute any error of law. 15 The appellant made a number of further submissions in reply responding to the respondent's submissions. In summary, the appellant contended:

(a) if the Respondent's submissions as to the construction of s10B (2BA) are correct, then the Parliament's intended change of test has been thwarted.

(b) the Respondent's submission concerning the oath of office confuses a subjective approach to the individual officer as opposed to an objective approach to the "duties of office in the police force in which the member is then or was employed". If the oath were to play any role in the test laid down by s10B it would have been expressly referred to yet it was not.

(c) The three subsections (2A), (2B) and (2BA) provide a test with two limbs, neither of which refers to the oath of office. An objective approach to the test is called for.

(d) The thrust of the Respondent's submissions is that the functions conferred or imposed on a constable will differ depending on the rank of the applicant officer. There is nothing in the section that can justify such a construction.

(e) The "functions" of a constable cannot differ from applicant to applicant. Accordingly, it is inappropriate to consider, as did his Honour, the "resources at his disposal" as a superintendent as opposed to, for example, a sergeant because the section does not contemplate it. To apply such a test is to lapse into the majority's approach in Boland where the fact that the disabled officer was able to perform his "selected" duties told against the success of his application.

(f) The Respondent's submissions fail to appreciate that the insertion of ss(2BA) extended the field of duties to be considered as opposed to restricted the field. The duties covered by ss(2A) and (2B) are additional to or supplementary to the duties described in ss(2BA).

(g) All police officers are required to perform their duties "individually" and s10B says nothing about the officer's capacity to discharge his duties in reliance upon other officers. The duties of an officer, in any rank, cannot be limited to the actual duties but must encompass potential duties or "expected" duties as defined by s10B(2BA), namely the functions conferred or imposed on a constable. As previously submitted, the Respondent's letter to Dr McGrath confirms that the duties of office are those that an officer can be expected to engage in.

(h) Although it is submitted that reference to secondary material is not necessary due to the clear construction to be given to s10B(2BA), it is nevertheless instructive to see that in the second reading speech in the Legislative Council the Minister for Justice said: "The Bill clarifies the definition of duties of office to ensure that it includes the general duties imposed on all police officer (sic) by reference to s14(1) of the Police Act, 1990 , which states ....." (emphasis added)

(i) That the appellant was a superintendent as opposed to a general duties constable could not have altered his capacity to discharge the duties of a constable.

16 As the appeal is brought under s189, leave to appeal is required under s188 of the Act. In support of his application for leave to appeal, the appellant raised the following arguments:

(a) this matter is the first opportunity to allow the Court to state the proper construction of s10B of the PRS Act following the insertion of s10B(2BA), which was inserted to overcome the effect of the majority decision in Boland ;

(b) Staff J failed to take into account the consensus amongst the experts providing evidence at trial as to Mr Morley's incapacity to discharge the duties of his office;

(c) the first instance decision introduces uncertainty as to the proper approach to the application of the principles explained by the Full Bench in Daykin ;

(d) the appellant's entitlements to a pension in the nature of superannuation benefits under the PRS Act, if granted as result of a successful appeal will be very valuable; and

(e) there are approximately 3,280 police officers who enjoy entitlements pursuant to the PRS Act and such entitlements will be given certainty by the Full Bench explaining both the proper construction of s10B(2BA) of the PRS Act and in circumstances of multiple infirmities. 17 In opposing the granting of leave to appeal, the respondent submitted:

(a) there was not the requisite public interest in considering the appeal. While this is the first case to consider s10B(2BA) of the PRS Act, his Honour was aware of this and made a thorough contextual and historical analysis before applying the section to the facts of the case;

(b) the construction of s10B(2BA) of the PRS Act contended by the appellant is one that is so wide as to make the balance of s10B meaningless as there would be no need to examine the specific duties of office because "front-line" policing would clearly be the most arduous in the NSW Police Force;

(c) the value to the appellant of a successful appeal is debatable given his existing pension level and his claim in the District Court challenging the Commissioner's ruling that his specified infirmity of major depressive illness did not arise from his duty as a police officer;

(d) his Honour heard considerable evidence and made findings of fact concerning the two core issues; duties of office and incapacity. Those findings do not disclose errors of law or principle; and

(e) the matter turned upon its own facts and there is insufficient importance for a grant of leave. In essence, the appellant simply failed to discharge his onus of proving, on the balance of probabilities, that there was a causal connection between his "back injury" and any incapacity to perform the duties of his office. The fact that the possibility of such a causal connection was conceded (provided "front-line" policing formed part of the duties of office) did not absolve the appellant from proving his case on the balance of probabilities. 18 The appellant addressed these submissions in his reply, by making the following submissions:

(a) the appellant disagreed with the respondent's approach to s10B contending that the respondent's submission misconceives the separate limbs of the test set out in s10B and inverts the order of significance played by each of the subsections s10B(2A), (2B) and (2BA). Section 10B(2BA) sets out the base duties of all officers which must be considered by the Court. Subsections 2A and 2B relate to additional or supplementary duties specific to the individual officer. Further, it does not follow that, because an officer might be capable of discharging the duties of a constable, he or she will necessarily also be capable of discharging his or her duties of a superior rank. An officer of superior rank might be capable of discharging the duties of a constable, but not capable of discharging his or her demanding intellectual or administrative duties if suffering from, for example, an inability to concentrate.

(b) the issue did have significance - the number of police officers who enjoy entitlements is in fact substantially more than 3,000 and the fact that the parliament saw fit to amend the scheme demonstrates the significance of the issue; and

(c) the respondent incorrectly valued a successful appeal to the appellant. Consideration

19 As the parties have helpfully and very clearly set out, there are three issues arising for consideration in this appeal, two of which were accepted as relating to the trial judge's findings based on the evidence and applicable law and the remaining issue a question of the proper construction of s10B(2BA) of the PRS Act. In our view, the key issue arising for consideration on appeal is the proper construction of s10B(2BA). We would grant leave to appeal with respect to that matter. It is an issue of general importance in this area of jurisprudence. For the reasons we shall give, the two issues relating to the findings of Staff J are not issues in respect of which we consider there is a sufficient basis to grant leave to appeal. Section 10B(2BA) of the PRS Act 20 Section 10B(2BA) of the PRS Act was introduced in response to the decision of the Full Bench in Boland. In Boland, a Full Bench of this Court was required to consider the construction of s10B(2B) of the PRS Act and, in particular, the meaning of the phrase "the duties of office in which the member was employed at the time of resignation". A consideration of the phrase arose in the context where, at the time of resignation, the appellant had been directed to perform selected or "light" duties rather than the usual duties of a plainclothes constable. The question thus arose as to the correct identification of the appellant's duties of office at the time of resignation. The majority (Marks and Schmidt JJ) held (at 160-161): A question nevertheless arises under s10B(2B) as to what the duties of such an office are. They may either be the particular duties allocated at the relevant time to such a constable, or the general duties which may be allocated by the Commissioner to such constables from time to time. We favour the narrower approach. In our view the broader approach is illogical and productive of difficulty. It also sits uncomfortably with the notion of employment in an office at a particular point of time inherent in s10B(2B), namely as at resignation and also with other relevant provisions of the Police Service Act. 21 In a dissenting judgment, Hungerford J interpreted the reference to "office" as referring to a position to be held by a police officer pursuant to s 11(1) of the Police Service Act and found that the direction to perform restricted duties did not constitute a position. As such, the last and relevant position held by the appellant at the time of his resignation was that of plainclothes constable at Maroubra Police Station for the purposes of the PRS Act and none of the conditions in s 82(1) of the Police Service Act existed to make that position vacant. 22 Following this decision, the NSW Parliament introduced the Superannuation Legislation Amendment Bill 2006 which, among other things, introduced s10B(2BA) into the PRS Act. The second reading speech contained the following comments regarding the new provision: A decision of the Full Bench of the Industrial Relations Commission in Derrick [sic] Boland v SAS Trustee Corporation , 2 November 1999, cast doubt on the validity of the interpretation of "duties of office" that has been applied for this determination over the past 20 years or more. The judgment concluded in respect of the Act governing the Police Superannuation Scheme: The legislation should plainly be revisited by the Legislature in order to ensure that a logical, consistent and readily understood regime applies to the important work which police officers perform in the State, particularly that aspect which regulates their circumstances in the event that they are injured in the performance of their duties. The bill clarifies the definition of "duties of office" to ensure that it includes the general duties imposed on all polices officers by reference to section 14(1) of the Police Act 1990, which states: In addition to any other functions, a police officer has the functions conferred or imposed on a constable by or under any law (including the common law) of the State. The amendment makes clear that the interpretation of "duties of office" that has applied in practice for many years can continue. 23 We observe that the particular factual matrix that arose in Boland does not arise in the present instance as there is no contest as to the particular position that the appellant held at the time of his retirement, namely a superintendent stationed at Deniliquin. 24 The point of difference between the parties' respective interpretations of s10B(2BA) is how regard should be had to the functions conferred or imposed on a constable. In essence, Mr R Seton SC and Mr M Walsh of counsel, who appeared for the appellant, contended that the effect of s10B(2BA) in the context of the appellant's position was that account needed to be taken of the duties of a superintendent, because that was his position and rank at the time, and also those duties of a constable as referred to in s14 of the Police Act. In taking the latter into account, counsel for the appellant contended that the effect of this provision is to provide the police officer with the obligation to take whatever steps are necessary and reasonable to apprehend a villain and that it must be determined whether an applicant is able to undertake this task. Counsel for the appellant further submitted that Staff J did not apply that test as he only looked at the duties of a superintendent in the context of assessing whether the appellant was incapable of performing the duties of office. 25 Mr P Menzies QC and Mr T Ower of counsel, who appeared for the respondent, agreed that regard had to be paid to the duties of a constable, however, he drew a distinction between the identification of those duties in a general sense and how, in a particular sense, those duties might be performed by an officer in the office in the police force in which that officer was then employed. In this regard, counsel cited the decision of Lee J in Griffiths v Haines [1984] 3 NSWLR 653 as authority for the proposition that the way in which the duties of a constable will be performed will differ across ranks. 26 At the outset we observe that the effect of the appellant's contention is that every officer carries, theoretically, the full range of duties of a constable which may be called upon and s10B(2BA) requires the testing of the physical or mental capacity of an officer against the full range of the potential duties of a constable. For the reasons we shall give, we do not accept that this is the proper interpretation of the test in s10B(2BA). 27 As to how duties of a constable can be performed, counsel for the respondent referred us to the judgment of Lee J in Griffiths. In Griffiths, in the course of deciding whether the plaintiff had a claim in negligence against the Government, Lee J was required to consider the question of what duties are cast by law upon a constable. Lee J stated: The duties of a constable are, so far as early times were concerned, dealt with at length in Lambard's Duties of Constables , 1610 ed 11 to 22 and 4 Holdsworth's History of English Law , 1st ed 124, and it can be seen that the duties then, as now, were manifold and involved a great deal more than direct and immediate attention to keeping the peace and preventing crime. For the purposes of the present case however it is unnecessary to go beyond the statement, earlier set out, of Viscount Cave LC in Glasbrook Brothers Ltd v Glamorgan County Council (at 277), where his Lordship said:

"… No doubt there is an absolute and unconditional obligation binding the police authorities to take all steps which appear to them to be necessary for keeping the peace, for preventing crime, or for protecting property from criminal injury."

This basic obligation is clearly expressed in the oath which every member of the police force from the Commissioner down is required to take in accordance with the Police Regulation Act 1899, s 9. The extent to which a constable has duties involving the protection of persons and property where no criminal element is involved, eg in the case of civil disasters, does not appear to have arisen for close analysis, but it is worth noting that in Haynes v Harwood [1935] 1 KB 146 Maugham LJ at 161-162 said:

"… It is also true that the primary duty of the police is the prevention of crime and the arrest of criminals; but that is only a part of the duties of the police in London. There is a general duty to protect the life and property of the inhabitants; …." 28 In Griffiths, the critical matter was whether the actions of the police involved in the Hilton operation and alleged to have caused the plaintiff's injuries, could have been regarded as having been other than the actions of constables performing their independent functions. As to this, Lee J concluded (at 666-667): Senior police planning an action to protect persons from threatened or possible criminal attack or planning to prevent a breach of the peace are no less discharging the duties of constables at law than are those who are actually physically engaged in the operation which results from those plans. The fact that the police force is organized into different ranks and acts on the principle that the lawful orders of superiors will be observed does not, as the Privy Council pointed out in Attorney-General for New South Wales v Perpetual Trustee Co (Ltd) (at 480) provide a reason for concluding that the police involved in an operation such as the one under consideration here are no longer acting as constables exercising original authority or exercising an independent discretion. 29 The appellant sought to distinguish the relevance of Griffiths on the basis that it involved a different question as to whether the particular acts undertaken were duties of a constable in the context of whether the Government was vicariously liable in respect of those acts. The appellant also submitted that any description of the duties of a constable by his Honour was strictly obiter as he did not have to fully set out the duties of a common law constable. On that basis, the appellant contended that his Honour did not purport to set out an exhaustive outline of the duties of constable and, as such, Griffiths does not offer much assistance to determine what the duties are of a constable. 30 We do not accept the appellant's submissions regarding Griffiths. We consider that the proposition that the respondent is seeking to draw from Griffiths is not related to the provision of an exhaustive list of the duties of a constable. Rather, we consider Griffiths supports the notion that different ranks within the police force can undertake the functions of a constable in different ways, relevantly by direct action or by planning or directing the actions of others. We accept the relevance of Griffiths in this regard. 31 Further, we agree with the respondent that in approaching the proper interpretation of s10B(2BA) it is necessary to have regard to how the duties of a constable would be performed and that this is done by reference to the particular rank or office of the police officer under consideration. In other words, we consider that the function of every police officer includes the common law obligations or functions of a constable but that the way in which those functions will be carried out in a particular instance and at a particular point in time will be determined by reference to the particular rank or position held by the police officer under consideration. 32 Accordingly, we do not consider that Staff J was in error when he found that to the extent the appellant had any physical limitations due to his back injury he could have effectively delegated the task to a subordinate. We consider that this is entirely consistent with the notion that the functions of a constable will be performed by a particular police officer in a manner consistent with their position or rank within the police service. This is not to say, as counsel for the appellant sought to do, that the functions of a constable will differ from applicant to applicant but rather that the manner in which those functions may be performed will differ. 33 We also do not consider that, as the appellant submitted, this means that regard is only had to the actual duties of a superintendent and not the duties of a constable. Rather, the functions of a constable are considered within the context of the performance of those functions being undertaken by a police officer in the position of a superintendent. We consider that this is the correct way to apply s10B(2BA). 34 The respondent contended that if the appellant's approach was correct as to how regard should be had to the duties of office and the duties of a constable, then it would have the consequence that the same set of duties of office would effectively be considered for every officer and that it would make ss 10B(2A) and (2B) redundant as the same duties would be considered under s10B(2BA) as under ss 10B(2A) or (2B). 35 Counsel for the appellant contended that there would not be duplication as it is not correct to assume that the duties of a constable cover the field of any other possible duties and it is possible that a person could discharge the duties of a constable but not those of a higher rank. Counsel for the appellant contended that the reason for looking at the actual duties as well as the duties of a constable was reflective of the overriding requirement for all members of the police service, no matter what rank they are, to undertake and be responsible for maintaining the peace. 36 This contention is answered by our approach to s10B(2BA), namely that regard is had to the duties of the office then held by the particular applicant (in this case, the office of superintendent) and the duties of a constable. In having regard to the duties of a constable, it is necessary to have regard to how those duties are performed by reference to the particular rank or position held by the applicant. Accordingly, as already found, it was appropriate for Staff J to find that, in the case of the appellant, he was capable of performing the duties of a constable by delegating certain tasks to more junior officers. Further, certain duties are simply not required to be performed by a person holding a particular rank or position. In this way, the duties of a superintendent and a constable were both considered, contrary to the appellant's submissions. This is evident from his Honour's conclusion (at para 108): In my view, because of the appellant's position, he was not required to use physical exertion to discharge "the functions conferred or imposed on a constable" as prescribed by s14 of the Police Act. 37 Lastly, counsel for the appellant submitted that Staff J was in error in having regard to a police officer's oath of office in considering the duties of office as the tests in ss 10B(2A), (2B) and (2BA) do not refer to the oath of office and if the oath was to be considered, it would have been expressly referred to. Counsel for the respondent contended that it was quite appropriate to have regard to the oath of office as Hungerford J referred to the relevance of the oath of office in his judgment in Boland and the oath of office under s13 of the Police Act is a prerequisite to the exercise of any function of a police officer, including the functions of a constable referred to in s14 of the Police Act. 38 We consider that the oath of office is relevant to the proper interpretation of s10B(2BA) of the PRS Act notwithstanding that it is not specifically referred to in s10B. It is an intrinsic part of a police officer's functions and, relevantly, taking the oath of office is a prerequisite to the performance of those functions. Accordingly, it was quite proper for Staff J to have regard to the oath of office. 39 In conclusion, we do not consider that the trial judge erred in his interpretation of s10B(2BA) nor did he err in applying its requirements to the appellant's factual circumstances. On this basis, we find no basis to uphold the appeal although as we have earlier found it was a matter appropriate to attract the grant of leave to appeal.

Other matters 40 Turning then to the other aspects of the appellant's appeal, which as we have already said, effectively amount to a challenge to findings made by Staff J on the basis of the evidence presented and applicable law. For the reasons we shall give, we refuse leave to appeal as to these matters. 41 Having found that Staff J correctly interpreted s10B(2BA) of the PRS Act, we are also satisfied that Staff J correctly applied the test in that provision to the facts as he found them. We consider that Staff J was correct in finding that the appellant's duties as a superintendent were carried out on a strategic rather than on a tactical basis and that no physical duties were shown on the evidence to impact upon the appellant's physical incapacity of his back and that to the extent they did, it was open to him to delegate those tasks. On that basis it was open for Staff J to find that his back condition did not create an incapacity. Further, we consider that it is clear from his Honour's judgment that he took into account both the duties of a constable and those of a superintendent. This is entirely appropriate given the proper interpretation of s10B(2BA). 42 As to the appellant's challenge to his Honour's application of the test in Daykin, again we consider that there is no basis for granting leave to appeal on this ground. We do not consider that Staff J relied on Daykin in reaching his conclusion and this is evident from his earlier finding that the appellant was not incapacitated in the relevant sense. The concern underlying the appellant's appeal on this basis arises from his Honour's description of the principle emerging from Daykin, however, we do not consider that even if his description was in error would it affect his Honour's findings. On this basis, we refuse leave to appeal. Conclusion 43 In these circumstances, leave to appeal should be refused except to the extent set out earlier but the appeal dismissed. 44 This may be a matter where it may not be appropriate to award costs. Accordingly, unless we receive an application for costs within 7 days we will treat the matter as concluded. Orders

45 We order: 1. Leave to appeal is refused except to the extent set out in these reasons; 2. Appeal dismissed.

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