Page v Commissioner of Police

• Bold in lieu of circles which were in the actual exhibit. 20The relevant part of the letter from the Police Force to the STC is this: "Our records indicate that the member sustained psychological injuries on 17 August 1991, 23 May 1995 and 30 November 1996 in on duty incidents. The claim dated 17 August 1991 was accepted as duty related via claim no SAP284343. The claims dated 1995 and 1996 were both declined as duty related via claim nos SAP284344 and SAP284345. Accordingly, the NSW Police Force accepts that the former officer has complied with the provisions of the Act in that he notified the Commissioner prior to his exit and within six months of the injury occurring." 21It would appear that Ms Banning is as mathematically challenged as I am and did not realise that six months from 17 August 1991 expired on 16 February 1992. However, the Commissioner of Police clearly made a representation to the STC that the plaintiff had complied with his statutory obligations, and as a result the Commissioner of Police permitted the STC to arrange for the plaintiff to be seen by PSAC, permitted the plaintiff to obtain the certificate from PSAC, then permitted the plaintiff to make an application to the Commissioner himself and then permitted the plaintiff to commence proceedings in this Court, and now the Commissioner of Police, 23 days short of three years after the commencement of proceedings, seeks to raise a new defence based directly contrary to a concession the Commissioner of Police made in the letter to the STC of 20 August 2008. 22The purpose of giving notice is to ensure that the other person knows what he has to meet in a timely manner, that is, gives the person being informed notice at an early time so that appropriate inquiries can be made as to the occurrence of the event relied upon and the nature of the injuries sustained. It is, in effect, to stop a person such as the current defendant from being prejudiced, just as requirements in workers compensation statutes are there to ensure that an employer is not prejudiced by a late claim by an allegedly injured worker. There is nothing to suggest any prejudice in the current matter at all. For example, nothing was said by Inspector Rolfe, who received the plaintiff's claim for hurt-on-duty benefits at the Glebe Police Station on 20 February 1992, to suggest that the claim was not bona fide. The claim for hurt-on-duty benefits itself asks the plaintiff this question, "To whom, when and where was the injury reported?" The plaintiff filled that in by typing, "Senior Constable Boyd, Police Welfare Department". 23Unfortunately the plaintiff did not record in that document the date when it was reported to Senior Constable Boyd. However, the matter was the subject of evidence given by the plaintiff. The plaintiff worked on Sunday 18 August 1991 and Monday 19 August 1991. The plaintiff told me that after the Strathfield massacre he did not sleep on the night of either Saturday 17 August or the night of Sunday 18 August. 24On the Monday 19 August the plaintiff went to the Glebe Police Station but did not work his full shift. When asked why not, the plaintiff said this: "I was upstairs in the highway patrol office and one of the fellows from downstairs, one of the general duties guys, came upstairs and said, you know, just for whatever reason, he might have come up to see ..(not transcribable).. I don't know, and he said to me, 'Hey Pagey'. I said, 'What?' He said, 'You heard about Strathfield massacre at Strathfield Plaza?' I said, 'What?' because I didn't know what he was talking about, and he said, 'People shop there on a Saturday morning now,' and I said, 'What?' and he said, 'Oh it's murder in the afternoon', which is a police humour thing. I laughed. It was as though someone had just lifted a weight off me and I said to whoever was in charge, I think it may have been Clarry Scanlon, the sergeant, I said, 'I've got to go home and go to sleep'. He said, 'Good, go, because you're no good to us here the way you are.' So I went home and I slept for 16 hours. I felt guilty about it." 25Earlier in his evidence the plaintiff said that on his next shift, which would have been Sunday 18 August, the following occurred: "... during the course of the day I found out there was myself, Vicky Spooner, Bruce Martin, a couple of police officers from downstairs, Rene Bradford and somebody else, so there was five of us from Glebe that had been at Strathfield. I was still feeling stunned and I decided to take it upon myself to ring the police medical office and ask that they could send somebody out to see us and I think their response was, "Oh, were you there, were you?" And I said, "Yeah, I'm not the only one, there was a number of us there". So they said, "Well, we'll send a person out". I think that was a psychologist and I don't remember who it was." 26In a later answer the plaintiff said that that person attended either the next day or the day after or sometime within that first week. 27The plaintiff first saw Dr Jeffrey Streimer, a psychiatrist, on 4 February 1992. In his initial history, the plaintiff told the doctor that on the fourth morning after 17 August, i.e. Wednesday 21 August, he rang the police psychologist, Jan Westerink, and was debriefed by her over a one-hour period and felt as if a weight had been lifted from his shoulders (exhibit A, p.89). Accordingly, I can accept that the plaintiff's experience at the Strathfield massacre was drawn to the attention of the Police Psychology Branch within a week of its occurrence. 28As I have earlier mentioned, the plaintiff reported off on sick report on 16 January 1992. He commenced annual leave in December 1991. During his leave he attended upon Dr Philip Cameron and it is known that the plaintiff saw Dr Cameron on 16 January 1992. Dr Cameron advised the plaintiff to talk to somebody in the Police Department who might come out to see him because the plaintiff complained to Dr Cameron, essentially, of an adverse reaction to the Strathfield massacre. The plaintiff's evidence then continued: "So I rang police welfare and they sent somebody out. Within 30 minutes the guy was there. We only live in Leichhardt and they are based in town so it wasn't a real he was there so promptly. And he said, "You're having a reaction to" - and we spoke about what had occurred in my life in the last few months and that might bring this on. He said, "You're having a reaction to Strathfield", and he said, "It's a post-traumatic thing". I said, "What do I do about it? I can't go on like this. This is what am I doing?" So he - I think he made an appointment to see a psychologist in the department and he said, "I suggest you get one as well". So I spoke to Phil Cameron and he recommended Jeffery Streimer to me and he agreed that what I was-what I'd gone through was a reaction..." 29The person identified in the claim for hurt-on-duty benefits as from police welfare is Senior Constable Boyd. The inference to be drawn from that evidence is that sometime in January 1992, on or shortly after 16 January 1992, the plaintiff made contact with the Police Welfare Branch and he was attended to by Senior Constable Boyd. 30In the circumstances, one can see why the Commissioner of Police accepted that the plaintiff had complied with his statutory obligation even though the formal notice was four days out of time when it is clear that the plaintiff's adverse psychiatric reaction to the Strathfield massacre was made known to authorities in the Police Force-that is, the Police Psychology Branch in August 1991 and the Police Welfare Branch in January 1992. 31I return to consider the nature of the defendant's application. Section 10B(2) of the Act as originally enacted was this: "(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 his resignation or retirement and within 6 months of receiving the injury which has caused his infirmity of body or mind, of the nature of that injury, and (b) two medical practitioners appointed by the governor for the purpose had certified that the former member would have been incapable, from that infirmity of body or mind, of discharging the duties of his office at the time of his resignation or retirement." 32Amendments were made to s 10B(2) by Act No. 73 of 1984. That Act received the Royal Assent on 27 June 1984 and was proclaimed to commence on 23 November 1984. It amended par (a) and inserted par (a1). The form of s 10B(2) currently available to me, the relevant form, is this: "(2) An annual superannuation allowance shall not be granted under section10 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 (a1) where the regulations so require, 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 would have been incapable, from that infirmity of body or mind, of discharging their duties of the member's office at the time of the member's resignation or retirement." 33The first thing to note is the amendment to par (a). Originally the former member was required to notify the Commissioner of Police of "the nature of that injury". The former member is now only required to notify the Commissioner of Police of "that injury", being the injury which the member alleges caused the member's infirmity of mind or body. There is in my view a distinction between advising of the nature of an injury and advising of the injury. 34For example, an injury might be described by a layman as being a kick in the stomach by which is really meant a kick in the abdomen. After such kicking the person receiving the "injury" might feel pain. A layperson might not be able to explain the nature of the pain. It may be merely soft tissue injury to the abdominal wall or the abdominal muscles or the layer of fat above the layer of muscle and underneath the skin. However, it could be that a kick in the abdomen could cause a rupturing of an internal organ or, if it actually connected with the tissue overlying the stomach itself, might cause a stomach ulcer to rupture. There have been cases of a similar nature litigated in this Court where, for example, it is alleged that such a kind of blow led to the development or aggravation of a cancer because it may have caused a dissemination of cancerous tissue within the relevant anatomical structure. 35The case to which I am referring involved an allegation of a cancer of a kidney, where the former member of the police force had in fact had a blow to the renal angle in some fracas with an offender. As originally enacted, par (a) required the member to specify the "nature of the injury" but now he is merely required to give notice of the "injury", not of its nature. This is not a fine distinction at all but a very pertinent distinction. At the time of the commencement of par (a1) there was a new Regulation made under the Act commencing on 23 November 1984 itself. Clause 6 of the Regulation provided that a notification of injury under s 10B(2)(a) of the Act should be in or to the effect of the form provided in Sch 3 to the Regulation. Schedule 3 contains the forms formally known as P124a and P124b. These two forms were replaced by composite form P124, which is the form that the plaintiff completed on 20 February 1992. The development of the form was considered by Staff J in SAS Trustee Corporation v Hazlewood [2009] NSWIRComm 157 commencing at [104]. It is not necessary to expatiate on the nature of the form. 36Before moving on, I should point out that the current form of s 10B(2) is different to that I have set out above, but not materially different. Pars (a), (a1) and (b) have been renumbered (a), (b) and (c) and there have been further amendments to what is now par (c). 37The decision to which I have just referred I would describe as most curious. The Full Bench of the Industrial Court was considering an application by the STC for leave to appeal against a judgment of Marks J given in Hazlewood v SAS Trustee Corporation [2008] NSWIRComm 215, in which his Honour held that the former member in that case had been suffering from PTSD and that his failure to make a claim could be essentially excused under s 66 of the Superannuation Administration Act 1996. The Full Bench allowed the appeal on the basis that a failure to give notice of injury could not be excused under s 66 of the Superannuation Administration Act 1996. However, each of their Honours made some comment on s 10B(2). 38In that case Mr Hazlewood had, on 21 June 1997, made an application for a medical discharge. He relied on a number of conditions and it appeared that the Police Medical Officer supported the former member's discharge because of alcohol abuse, diverticulitis, severe gastro-oesophageal reflux disease, symptoms of anxiety disorder and paranoid personality disorder. On the basis of those conditions, Mr Hazlewood was discharged from the New South Wales Police. However, in respect of none of those conditions did Mr Hazlewood say that he was claiming to have been hurt on duty. The medical discharge took effect on 27 January 1998. 39On 24 February 2001, Mr Hazlewood made an application for a pension in excess of 72.75% of the salary of his office. Essentially, he was making an application under s 10B(2). On 25 September 2001, Ms Banning, on behalf of the Commissioner of Police, sent a letter to PSAC noting that Mr Hazlewood claimed conditions of alcohol damage to his liver, severe ulcers to the stomach and gullet, and complicated diverticular [sic] and polyps, depression and bilateral herniae affecting the groin. Ms Banning went on to say this: "Accordingly, the police service accepts that the former member has complied with the provisions of the Act in that he applied prior to his medical discharge and within six months of the condition occurring." 40PSAC certified pursuant to s 10B(2) that Mr Hazlewood was incapable due to infirmities of "alcohol dependence, depression and paranoid personality traits" of discharging the duties of his office as at the date of his medical discharge on 5 February 1998. Mr Hazlewood then made an application that he was also incapacitated as at the date of his retirement because of PTSD. That was accepted by Marks J but, prior to his Honour so finding, the STC Disputes Committee determined that Mr Hazlewood did not notify the Commissioner of Police under s 10B(2)(a) within six months of receiving the injury which caused the claimed infirmity, namely PTSD. 41The first judgment was given by the President, Boland J. Commencing at [31], his Honour said this: "[31] As I have explained, the appellant's position was that it had been advised by the Commissioner that the respondent had not made any 'claim and/or notation' in respect of 'post-traumatic syndrome' (presumably a claim and/or notation that could be regarded as notice of an injury, although the Commissioner did not say that in explicit terms). Accordingly, STC contended that it had been advised that there was no notification of injury it could not certify an infirmity of PTSD. [32] Despite the palpable unfairness of it, the position taken by STC in these proceedings has to be accepted as correct. It is clear that the respondent was suffering from multiple infirmities, including PTSD, at the time of his discharge. The Police Commissioner has accepted there had been notification of undoubtedly associated conditions of alcohol dependence, depression and paranoid personality traits, but the Commissioner's advice was that there was no notification of an injury in respect of PTSD. There was no notification because at the time Mr Hazlewood was not aware he was suffering from PTSD. I wish to make it clear that I do not regard the PTSD suffered by Mr Hazlewood as a 'latent' condition. It was not as though the condition was dormant at the time of the respondent's discharge; it was simply the case that the condition existed and, in my opinion based on the finding of Marks J, had manifest itself, but the condition had not been diagnosed. [33] Regrettably, nevertheless, in my opinion STC is unable to go behind advice provided by the Commissioner as to whether or not an injury had been notified. To require STC to do so would be entirely impracticable, as the Commissioner has access to and control of all records associated with injury notifications and there is a clear demarcation under the statute between the functions of STC and the functions of the Police Commissioner under s 10B of the PRS Act: Commissioner of Police v SAS Trustee Corporation [2002] NSWIRComm 31 ... STC is obliged to accept the advice of the Commissioner on its face regarding notification." 42In the next paragraph his Honour goes on to agree with Staff J as to the reasons why s 66 of the Superannuation Administration Act 1996 could not be relied upon. His Honour then said this: "[35] I observe that the Commissioner's advice about the absence of any claim and/or notation in respect of PTSD was provided before it was found by Marks J (a finding not challenged by the appellant) and that the respondent was suffering from PTSD at the time of his discharge. The best that can be done in the circumstances is to note that it would be open to the appellant to now seek the Commissioner's fresh advice about whether or not the conditions the Commissioner accepted as constituting notice of injury in respect of conditions that may readily be associated with the respondent's PTSD, namely, alcohol dependence, depression and paranoid personality traits, also constituted notice in respect of PTSD, having regard to the judgment of Marks J and to what I have said in this judgment." 43Commencing at [37] Boland J considered whether a "traumatic stressor" could constitute an injury. His Honour held that Marks J erred in finding that that was so. A traumatic stressor can constitute an injury. Provided the traumatic stressor causes some morbid pathological condition of the psyche, it has caused an injury. I do not understand Boland J to there be propounding a principle of law but rather perhaps criticising the terminology that may have been used by Marks J. In [47] of his reasons Boland J said this: "There was no compliance with Schedule 3 [the statutory notice] by the respondent in respect of his notification in respect of alcohol dependence, depression and paranoid personality traits, yet notification was accepted by the Police Commissioner and, in turn, STC. If STC were to seek fresh advice, as proposed above, and it was accepted that there was notification of an injury, there could be no secondary objection based on the form of notification. The appellant should not approbate and reprobate: Express Newspapers PLC v News (UK) Limited [1990] 1 WLR 1320 at 1329. It could not, on the one hand, accept the requirements as to the form of notification were met in respect of infirmities arising out a set of injuries and, on the other hand, deny notification was not in the proper form in respect of any injury causing PTSD." 44With that observation I concur. If, for example, the Commissioner of Police were satisfied that the applicant in that case had given notice of his alcohol dependence and depression and paranoid personality traits as being caused by his having been hurt on duty, the Commissioner could hardly then object to having an alternative diagnosis of the same set of symptoms differently categorised as not having been the subject of a notice. Indeed, that latter observation really, in my view, shows that this decision of the Industrial Court, which I am not bound to follow under the doctrine of stare decisis, ought not be followed. 45With the utmost respect to the judges of the IRC who decided SAS Trustee Corporation v Hazlewood, they appear to have not realised that the word "injury" can have one of, at least, two meanings. In Lyons v Master Builders Association New South Wales Pty Ltd (2003) 25 NSWCCR 422 I said this: [20] "Here, I have found that the applicant's chondromalacia patellae, was caused by the injury of 12 February 2002. It does not matter whether there has been subsequent aggravation by work or by a non-work event to make any absence due to the underlying chondromalacia patellae compensable as a result of the frank injury of 12 February 2000. If there were-and I am not finding that there was-an aggravation or exacerbation of the condition by the applicant's work with Masonry Works, a situation where the relevant incapacity results from more than one injury such that there could be an apportionment under s 22 etc if that employer were joined to these proceedings, but because of changes to jurisdiction that employer may not be able to be joined to these proceedings. In any event, there can be no apportion where the employer against who an apportionment be sought has not been joined to proceedings. [21] As to the respondent's reliance on the decision of Colliar v Bulley (2000) 19 NSWCCR 40, I must point out that it is completely inconsistent with the earlier decision of the Court of Appeal in Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 17 NSWCCR 309; 48 NSWLR 606. That the two decisions are inconsistent is pointed out by the dissentient in Colliar v Bulley, Priestley JA. Australian Conveyor Engineering was a decision of Sheller and Powel JJA, with whom Fitzgerald AJA dissented. In Colliar v Bulley, as I have pointed out, Priestley JA was the dissentient, the majority consisting of Davies AJA with whom Meagher JA agreed. Accordingly, on the issue currently before me, Priestley, Sheller and Powel JJA are of one view and the other view comprised of the dissenting judgments of Fitzgerald AJA and the judgment of Davies AJA with whom Meagher JA agreed. [22] In my view, the weight of the judicial opinion in the Court of Appeal is in favour of the correctness of Australian Conveyor Engineering. However, the principle is clear that, where there are two inconsistent decisions of an intermediate appellate court, the first in time ought be followed, which is Australian Conveyor Engineering. Here I have found an injury initiated chondromalacia patellae which is a degenerative disease process. That should be an injury simpliciter within s 4 and one does not need to have recourse to ss 15 or 16 of the Act. Indeed, if I might respectfully say so, the majority decision in Collier v Bulley really fails to distinguish between the receipt of the injury or the injurious event and the pathology arising from the event. Unfortunately, the word injury refers to both the event and the pathology arising from it. It is often necessary to draw the distinction. The Act makes the receipt of injury compensable, not the injury itself." 46En passant, I should point out that my statement of the applicable principle of stare decisis was completely incorrect. Unfortunately, I relied on what a member of the Court of Appeal had said at a recent judicial conference, rather than researching the principle myself. Happily, my view of the substantive law has been held to be correct: Rail Services Australia v Dimovski (2004) 1 DDCR 648 per Handley JA at [29], per Hodgson JA at [67] to [68] and per Young CJ in Eq at [82] to [85]. Indeed, in that case at [31] Handley JA points out that the word "injury" used in s 67(1) of the Workers Compensation Act 1987 did not refer to "the pathology" but to "the injurious event". 47The distinction between the injurious event and the pathology is very important. The word "injury" can mean each of those things. Neither an ordinary worker making a claim under the Workers Compensation Acts nor a member of the police force making a claim for hurt-on-duty benefits against the Commissioner of Police is a qualified medical practitioner who may be able to provide a diagnosis. The distinction which I drew in Lyons continues to be drawn. It was drawn by Roche DP in Department of Juvenile Justice v Edmed (2008) 7 DDCR 288, commencing at [26]. The Deputy President continues to use such terminology, for example, in the Department of Environment v J (2010) 8 DDCR 353. 48Mr Hutchings, for the defendant, referred me to the decision of the Court of Appeal in Lembcke v SAS Trustee Corporation (2003) 25 NSWCCR 464; 56 NSWLR 736. In particular, he drew my attention to what fell from Ipp JA at [55] - [56]. Lembcke, however, was a very different case to the present one. Lembcke was a case in which Ashford J, following one of my decisions, had applied the provisions of s 40 of the Workers Compensation Act 1987 in determining the top up pension that may be payable under s 10(1A). That approach was held to be erroneous. His Honour pointed out at [55] this: "The fact that like phrases are used in parts of the two Acts does not necessarily result in those phrases bearing the same meaning." 49However, here we have a scheme where there is an annual superannuation allowance that may be classified as hurt on duty which accords a higher rate of superannuation. "Hurt on duty" is defined in the Act as meaning "injured in such circumstances as would, if the member were a worker within the meaning of the Workers Compensation Act 1987, entitle the member to compensation under that Act." Under the Workers Compensation Act 1987 it is necessary for a worker to prove that he has received an "injury". The word "injury" itself is defined in the Workers Compensation Act 1987 and therefore that definition works its way into, for example, determining whether a policeman was "hurt on duty". 50Under the Workers Compensation legislation a worker is required to give notice of injury. A like notice is now required under this Act. In those circumstances I believe that it is appropriate that the word "injury" should be construed in a similar fashion and to again point out, even if it be not necessarily so, that injury can be used in one of two ways. It can refer to the event in which pathology is received; the event can be called the injury and the pathology can be called the injury. That is a distinction that was not drawn in Hazlewood. 51It is often found, especially in psychiatric conditions, that what is originally diagnosed does not end up being the final diagnosis. Furthermore, what a general practitioner might categorise as depression or anxiety may be categorised by a psychologist as a chronic adjustment disorder and then subsequently it might be categorised by a psychiatrist as PTSD, or might be categorised by another psychiatrist as an episode of Major Depression. It is a question of categorisation of whatever the pathology is, not of certifying different things. It is the one entity but different names are being applied to it from time to time by various medical practitioners. In fact, the failure to make that distinction not only affects the judgment of Boland J but also substantially affects the judgment of Staff J. 52However, it is necessary to consider Hazlewood a little further to ascertain what their Honours thought as to who makes the decision under s 10B(2)(a). In the short judgment of the Vice President, Walton J, his Honour said at [51]: "A claim for an annual superannuation allowance under s 10B will fail if the Commissioner of Police bona fide certifies that the claimant has not provided the requisite notice of having received the injury that is claimed to have caused the claimant's infirmity of body or mind, within the prescribed period in s 10B(2)(a). The Commissioner of Police so certified in this matter, and the appellant must, therefore, succeed." 53It appears that whilst the President was persuaded that it was up to the STC to make the decision, essentially the STC must rely upon what the current defendant says. According to the Vice President, the certification could be made by the Commissioner of Police. The opinion of Staff J was that the decision had to be made by the STC. Commencing at [95], Staff J said this: "[95] Mr B Gross SC, who appeared for the respondent, submitted that the proper construction of s 10B was that all of the steps contemplated in s 10B should occur before the appellant ultimately determined the question of notification to the Commissioner of Police. In other words, the appellant would issue a certificate to the effect that infirmity existed: in this case, PTSD. The Commissioner of Police would consider that certificate and whether the infirmity arose because the police officer was hurt on duty (s 10B(3) of the Act). Either the Commissioner of Police, or the District Court, may find that the infirmity was caused by the member having been hurt on duty and that it occurred on a particular date. The appellant would then be required to consider whether or not the former member notified the Commissioner of Police before resignation or retirement and within six months of receiving the injury (s (2) of the Act). The appellant would conclude that notification did not occur (upon advice from the Commissioner of Police) and that would conclude the matter. [96] Section 10B(2) requires not only the certification of the infirmity, but also the certification of the infirmity given the prerequisite of notice being satisfied. Mr Gross' construction of s 10B of the Act puts the matters to be considered under s 10B of the Act in the statutory context in the incorrect order. Pursuant to s 10B(2) of the Act there are three prerequisites. First, there is the notification: s 10B(2)(a) of the Act. Secondly, where required the notification was in the prescribed form: s 10B(2) (a1) of the Act. Thirdly, the Board certifies a former member would have been incapable, from that infirmity of discharging the duties of his office at the time of his resignation or retirement (s 10B(2)(b) of the Act). If any of those requirements under s 10B(2) of the Act are not satisfied, then s 10B(3) of the Act is unable to operate because it is dependent upon a member, or former member of the police force being duly certified under s 10B(1) or s 10B(2) of the Act. The approach of Mr Gross introduces a layer of complexity that is not warranted. [97] The legislature has determined that notification should be the first step. If there is no notification with which to start, there will be no certification and, therefore, no need to potentially have two or three sets of proceedings before s 10B(2)(a) of the Act is considered. This would appear, potentially, to give rise to a significant injustice, such approach being contrary to the proper construction of the section and not being in the public interest." 54His Honour clearly was persuaded that the issue under s 10B(2)(a), should be determined before the matter proceeds to the Police Superannuation Advisory Committee and before it proceeds to the Commissioner of Police, and could not happen in some other order. However, clearly his Honour believed that the duty was on the STC rather than the Commissioner of Police to make the determination as to whether there had been compliance with s 10B(2)(a). Clearly, the STC has a duty to administer the Police Superannuation Fund established under the Act. That can be gleaned from the Superannuation Administration Act 1996 s 50(1)(a). 55The issue as to whether it is the Commissioner of Police who makes a decision under par (a) can be further determined by having regard to s 21, which provides for appeals to this Court. Section 21(1) is in the following terms: "A person who considers himself or herself aggrieved by: (a) a decision made by STC on a matter that arises under this Act by reason of the member of the police force being hurt on duty, or (b) a decision made by the Commissioner of Police under s 10A(1), 10B(3)(a), 12C(1), 12C(2) or 12D(4)(a), may, within a period of 6 months after the person is notified of that decision, apply to the District Court for a determination in relation to that decision." 56When s 10B(2)(a1) was inserted, there was no consequential amendment to subs (3). Subsection (3) is in these terms: "Where a member or former member of the police force is duly certified under subsection (1) or (2), the Commissioner of Police shall: (a) decide whether or not the infirmity to which the certificate relates was caused by the member being hurt on duty or the former member having been hurt on duty when he or she was a member of the police force, as the case may be, and the date or dates on which the member or former member was hurt on duty, and (b) give the member or former member written notification of the decision." 57The Commissioner's only role under s 10B(3) is to decide whether the certified infirmity was caused by the member or former member having been hurt on duty, to ascertain the date or dates of injury, and to notify the member or former member of his decision. One might think that the reason the Commissioner of Police has to notify the date or dates of injury might have something to do with s 10B(2)(a1) but that is not at all clear. Furthermore, if that were the reason for the determination of dates, one wonders why the Commissioner of Police was not given specifically the power to make a decision as to whether the member or former member had complied with the provisions subs (2)(a). The date and dates of injury could equally be for the ascertainment of the quantum of the pension benefit or perhaps for the date on which the pension benefits were to commence. 58With some reluctance, I accordingly am persuaded that it is within the purview of the STC to make the decision under s 10B(2)(a). That is based on the judgments of Boland and Staff JJ and my own construction of s 10B. If the Commissioner purported to make a decision under s 10B(2)(a) or (a1) one might think that it was not justified under subs (3) and therefore would not be the valid subject of an appeal under s 21. However, it is obvious, as was pointed out in the Industrial Court, that essentially the decision can only be made on the records of the Commissioner of Police and here the decision appears to have been made by the STC based on the admission made by the defendant in the letter of 20 August 2008. 59True it is, as Mr Hutchings has submitted, that for me not to grant him the leave sought and to hold that it was a matter that only the STC could determine, and to go on to determine matters adversely to the plaintiff at the end of this litigation, could be extremely inconvenient and costly for both the current plaintiff and the present defendant. However, similar problems have arisen in the past because of the interpretation of the Act. There are not only problems about construction of the Act but there are demarcation disputes, such that some issues come to this Court, others go to the Police Superannuation Advisory Committee and then to a Disputes Committee and then to the IRC, and such a path may be followed before some piece of litigation can be ultimately determined in this Court. 60Accordingly I must find that it is not open to the Commissioner of Police to litigate the matter sought to be litigated by the defendant in the further amended defence dated 30 May 2012. If I be wrong on that, and I believe it would be of practical utility if I were wrong, then I would not grant the current defendant leave to raise the issue at this time, bearing in mind the admission made on the defendant's behalf on 20 August 2008, which has led to so much occurring in the interim, that is, the plaintiff being permitted to go before the Police Superannuation Advisory Committee, obtaining the certificate, obtaining the decision of the Commissioner of Police, commencing proceedings in this Court, running the trial over four days and then preparing a further case which the defendant seeks to try to stymie by raising a defence almost three years after the commencement of the proceedings. 61In other words, it appears to me that the prejudice to the plaintiff is such that I should not grant leave. The prejudice cannot be cured merely by costs. Costs are not a panacea. The expectations of a litigant are something which is difficult to quantify but here expectations have been raised since 2008 and the expectations that the plaintiff has had for some almost four years would be blasted by granting the defendant leave to rely on the further amended defence, upon which the defendant seeks to rely. Therefore, in the exercise of my discretion under 64 of the Civil Procedure Act 2005, I refuse the defendant leave. 62The question of estoppel also arises and in my view this would be an appropriate case in which to find that there had been an estoppel by conduct or waiver. I need not formally find that because the matters that are germane to it, I rely upon in the exercise of my discretion.

Amendments 21 November 2012 - Amended title - surname of plaintiff only 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: 21 November 2012