Page v Commissioner of Police

Judgment 1This is an application by the defendant for leave to file and rely upon a document headed "Further amended defence", which bears date 30 May 2012. The further amended defence seeks to add a further plea, numbered 12. That plea is this: "In further answer to the whole of the amended statement of claim the defendant relies upon s 10B(2)(a) of the Police Regulation (Superannuation) Act 1906 (NSW)." 2I shall refer to the latter Act as "the Act". Whilst that proposed amended defence was dated yesterday, the defendant in fact filed a notice of motion on Friday 25 May 2012 seeking that the proceedings be "summarily dismissed". I am told by Mr Hutchings of Counsel, who appears for the defendant, that the purpose of that notice of motion was in fact to agitate the contention which it is now sought formally to plead. However, little turns on whether the defendant first decided to seek to raise this defence either on Wednesday of this week or Friday of last week. 3It is important to understand some of the chronology of the matter. 4The plaintiff was involved in an event which has passed into the memory of the citizens of Sydney as the "Strathfield massacre". That event occurred on Saturday, 17 August 1991. The plaintiff, who was at the time a constable first class, attended the Strathfield Plaza where there were multiple homicides. A claim for hurt-on-duty benefits indicates that eight members of the public were killed and seven others injured. In that claim for hurt on duty benefits the plaintiff claimed that he was suffering from post traumatic stress syndrome ("PTSD") as a result of his working at Strathfield Plaza on 17 August 1991. 5The claim for hurt-on-duty benefits was dated by the plaintiff on 20 February 1992 and submitted by him to the Commander at the Glebe Police Station, to which the plaintiff was then assigned, on the same date. The claim for hurt on duty benefits was received by an inspector at Glebe, Inspector Rolfe. It is to be noted that six months from 17 August 1991 expires on 16 February 1992, and importantly this document was lodged four days after the half yearly anniversary of the Strathfield massacre. The claim for hurt-on-duty benefits was then sent from the Glebe Police Station to Police Headquarters, where it appears to have been received on 24 February 1992. 6Antecedent to putting in his claim for hurt-on-duty benefits, according to the document claiming hurt-on-duty benefits, the plaintiff reported off sick on 16 January 1992. It is not necessary for current purposes to consider the plaintiff's absences from work after 16 January 1992. There were times when the plaintiff worked and times when he did not work. 7On 19 March 1997, the plaintiff was removed from the New South Wales Police Force pursuant to s 181D of the Police Act 1990. At that time the plaintiff was a senior constable of police. 8On 14 April 2008, over 11 years later, the plaintiff made an application under s 10B(2) of the Act for, essentially, a "hurt-on-duty pension". That was sent by his solicitors to the SAS Trustee Corporation on 22 April 2008. It was received by the agent of the SAS Trustee Corporation on 28 April 2008. I shall refer to the SAS Trustee Corporation hereafter as the "STC", as that is the terminology used in the Act. 9Eventually, the plaintiff's application was considered by the Police Superannuation Advisory Committee (PSAC) on 26 February 2009. PSAC acts as the delegate of STC. PSAC determined that the plaintiff was, at the time that he was removed from the police force, incapable of personally exercising the functions of a police officer because of PTSD. On 4 March 2009, the current defendant, the Commissioner of Police, determined that the suffering by the plaintiff of the condition of PTSD was not caused by his having been hurt on duty. The plaintiff was advised of his right to appeal to this Court within six months of the Commissioner's decision. 10On 24 June 2009, the plaintiff filed a statement of claim in which he asked that the decision of the Commissioner of Police made on 4 March 2009 be set aside and be replaced with a decision that the suffering by the plaintiff of the condition of PTSD was caused by his having been hurt on duty. The originating process merely relied upon the events to which the plaintiff was exposed on 17 August 1991. The defendant filed a notice of appearance on 15 July 2009 but did not file a defence until 21 May 2010, approximately 11 months after the filing of the statement of claim. The original defence did not raise the defence which the defendant now seeks to rely upon. 11On 2 June 2010, the plaintiff filed an amended statement of claim which, in essence, only makes amendments which I had earlier permitted the plaintiff's solicitor to make on 31 May 2010. The defendant then filed an amended defence on 15 June 2010 which raised many new matters of defence, in particular a defence under s 11A of the Workers Compensation Act 1987. The amended defence did not regurgitate plea 10 in the original defence. In light of what is currently before me, the old plea 10 is of some interest. It is this: "In further answer to the statement of claim as a whole, the defendant states: (a) On or about 20 February 1992 the plaintiff lodged a claim for hurt on duty benefits form, claiming psychological injury of post traumatic stress disorder (PTSD), as a result of his attendance at multiple homicides at the Strathfield Plaza on 17 August 1991. (b) On 1 June 1992 approval was given for the plaintiff's injury of PTSD sustained on 17 August 1991, to be accepted as having been received whilst on duty. (c) Because the injury pleaded by the plaintiff has already been accepted by the defendant as being caused by the plaintiff having been hurt on duty, the current statement of claim discloses no reasonable cause of action and is an abuse of the process of the Court." 12That defence was clearly bad because the Commissioner himself had said that the suffering by the plaintiff of the PTSD was not caused by the plaintiff's having been hurt on duty, and it may well be that the defendant's case is that although there was a PTSD immediately following 17 August 1991, the condition which incapacitated the plaintiff at the date of his dismissal was not causally related to that episode of PTSD. In any event, it should be noted that the Commissioner of Police, in his initial defence, was pleading that the injury of 17 August 1991 had been accepted as having been caused by the plaintiff's having been hurt on duty. I return to the amended defence. The amended defence does not raise at all the matter of defence upon which the defendant now seeks to rely. 13The hearing of this matter commenced on Tuesday 9 November 2010. Evidence was last given on Friday 12 November 2010. In the course of addresses I granted the plaintiff leave to reopen his case to adduce further evidence. The need for that to be done resulted from the evidence adduced by Mr Hutchings from a doctor called by the plaintiff, Dr Snowdon. Indeed, it would be uncandid of me not to comment at this stage that I said at that time that Mr Hutchings had managed to turn his client's case from a sow's ear into a silk purse. 14The matter was not able to start again until Wednesday 30 May 2012 because of various circumstances, in particular the unavailability of counsel and changes to my roster which required me to be on circuit when the matter was listed for hearing last year. It is to be noted, however, that there have been four days of hearing and the plaintiff has accumulated further evidence and there are further witnesses to be called. 15The pleadings have clearly been closed for some considerable time. The defendant needs leave to file and rely upon the proposed amended defence. The granting of leave is governed by s 64 of the Civil Procedure Act 2005, and by UCPR Pt 19. 16In the commentary in Ritchie's Service on s 64, it is pointed out that an amendment must not cause undue prejudice to the other party. The plaintiff can point to undue prejudice. The first thing to note, of course, is that if the defence had initially been pleaded the plaintiff may have discontinued the proceedings, or may have sought to have that issue agitated as a discrete issue, and only if he were successful on the discrete issue would it be necessary, for example, to prepare his medical evidence. However, the prejudice is greater than the mere running up of costs and the blasting of expectations. 17On 21 July 2008, that is, relatively shortly after the plaintiff's s 10B(2) application had been received by the STC, the STC wrote to that section of the New South Wales Police Force which looks after claims for hurt on duty benefits. That letter seeks certain information from the defendant. It points out that the plaintiff had provided information that he was suffering from PTSD. That letter then contains a heading, "Information Sought". The letter then continues thus: "Before the application can be considered by PSAC on the grant of an incapacity certificate, we require information about those injuries. Accurate dates are important because under the Act the applicant needs to have notified the Commissioner of Police of each injury before resignation or retirement and within six months of receiving the injury. We would appreciate it if you could provide the following information in the table below:" 18The information was set out in the table and a copy of the STC's letter to the defendant was returned to the STC, which received it back on 21 August 2008. It was accompanied by a letter from the New South Wales Police to the STC, which itself bears date 20 August 2008. That letter was also received by the STC on 21 August 2008. 19The table as completed by, I infer, Ms Banning on behalf of the defendant is this: iClaimed injury Date of injury Notification to Commissioner Date of notification PTSD 12.11.96 Yes* / No 31.12.96 Anxiety/ Hypertension 23.5.95 Yes* / No 2.6.95 PTSD 17.8.91 Yes* / No 24.2.92 Yes / No Yes / No Yes / No Yes / No