Perrin v SAS Trustee Corporation

Judgment 1HIS HONOUR: At a callover on 1 August 2014 I set down for hearing today the issue raised by plea numbered 11 of the second amended defence filed by the defendant on 4 August 2014. Obviously, I had drawn to my attention on 1 August 2014 the second amended defence which the defendant then sought to file and which was in fact filed on 4 August 2014. This morning I granted leave to the plaintiff to rely on a first amended statement of claim filed on 26 September 2013 and I also granted leave to the defendant to rely on the second amended defence filed on 4 August 2014. 2The relief claimed by the plaintiff in the statement of claim upon which I have granted him leave to rely is this: "1.The determination of the defendant's delegate dated 14 December 2012 pursuant to s 12D(1) of the Police Regulation (Superannuation) Act 1906 ("the Act") declining to approve the payment of a gratuity for operative treatment on the plaintiff's cervical spine is set aside pursuant to s 21 of the Act. 2.The determination of the defendant's delegate dated 10 July 2013 pursuant to s 12D(1) of the Act declining to approve the payment of a gratuity for operative treatment on the plaintiff's cervical spine, be set aside pursuant to s 21 of the Act. 3.The defendant pay a gratuity to the plaintiff for operative treatment on the plaintiff's cervical spine pursuant to s 12D(1) of the Act, or such other treatment the Court deems fit." Although the plaintiff seeks an order that the defendant pay to him a gratuity under s 12D, the case has been presented on the basis that what the plaintiff actually seeks is a finding that it is reasonably necessary that he undergo operative treatment to his cervical spine. I shall shortly outline that operative treatment. 3Paragraphs 9, 10 and 11 of the defence upon which I granted the defendant leave to rely this morning are these: "9.The defendant admits that on 14 December 2012 the delegate purported to make a determination of the Plaintiff's claim for a gratuity to[sic] s 12D(1) of the Police Regulation (Superannuation) Act 1906 however the defendant disputes that: (a)the Plaintiff had a right to seek a gratuity at that time for the medical treatment sought; and (b)any determination was made on that date. 10.The defendant admits that on 10 July 2013 the delegate purported to make a determination of the Plaintiff's claim for a gratuity pursuant to s 12D(1) of the Police Regulation (Superannuation) Act 1906 however the defendant disputes that: (a)the Plaintiff had a right to seek a gratuity at that time for the medical treatment sought; and (b)any determination was made on that date. 11.By reason of the matters referred to in paras 9 and 10 above, the Court does not have jurisdiction pursuant to s 21 of the Police Regulation (Superannuation) Act 1906 to grant to the Plaintiff the relief sought." 4The issue for my determination is whether the Court has power to make the sort of finding that the plaintiff seeks that it make. 5The plaintiff is a former senior constable of police. He was attested as a probationary constable of police on 15 May 1987 and thereupon became a contributor to the Police Superannuation Fund established under the Police Regulation (Superannuation) Act 1906 ("the Act"). The plaintiff injured his neck when the police vehicle in which he was a passenger collided with a truck. That appears to have occurred on 1 January 1998. However, the plaintiff worked on as a senior constable of police until, it would appear, 20 July 1998. On 8 November 2001 the plaintiff was medically discharged from the NSW Police. 6On 4 September 2007 he made an application for a "hurt on duty" superannuation allowance claiming that he had been unable to perform the duties of his office on account of injuries to his left knee, back and neck. Subsequently, the Police Superannuation Advisory Committee ("PSAC") established under the Act decided that the plaintiff was suffering from the infirmity of "cervical spondylosis with a degree of radicular symptoms in the left arm". That determination was made on 30 October 2008. 7On 22 September 2010 the Commissioner of Police by his delegate determined that the suffering by the plaintiff of the infirmity of "cervical spondylosis with a degree of radicular symptoms in the left arm" as determined by PSAC was caused by the plaintiff's having been hurt on duty and the Commissioner of Police fixed a date of injury as 20 July 1998 and indicated that that was a "notional" date of injury. I assume that the Commissioner of Police determined that not only was the motor vehicle accident on 1 January 1998 a causative factor in the plaintiff's neck condition but so also was the type of work he did as a senior constable of police until stopping work on or shortly after 20 July 1998. 8On 13 September 2012 Dr Ashish Diwan, the head of the Spine Service in the Department of Orthopaedic Surgery at the St George Hospital recommended that the plaintiff undergo an anterior cervical decompression and fusion at the C6/7 level and also anterior cervical disc compression and disc replacement at C5/C6. I would have called the surgery proposed for C5/C6 as laminectomy and discectomy and the surgery proposed at C6/7 as laminectomy and fusion. 9Opinions were sought as to the need for this treatment. The plaintiff was examined by Dr Michael Ryan, Clinical Associate Professor of Surgery, on 27 November 2012 and Dr Ryan, in a report of 11 December 2012, concluded that the surgery proposed by Dr Diwan was unlikely to help the plaintiff. A similar recommendation was made by Dr Raymond Schwartz, a neurologist, on 3 July 2013. For the purpose of that opinion, Dr Schwartz examined the plaintiff on 15 April 2013 and on 30 May 2013 whilst, in the meantime, the plaintiff had undergone certain testing that Dr Schwartz had recommended. Dr Schwartz did not feel that the plaintiff should undergo surgical decompression of his cervical spine. 10Following upon the advice of Dr Ryan, the defendant acting through its delegate, Allianz Australia Insurance Limited, wrote to the plaintiff advising him that its view was that the plaintiff did not require ongoing treatment of "a workplace injury as per sections 59 and 60 of the 1987 Act". The reference to the 1987 Act is a reference to the Workers Compensation Act 1987 and ss 59 and 60 of that Act regulate the liability of an employer for the payment of hospital, medical and the like expenses. In its letter of 14 December 2012, Allianz advised the plaintiff that if he disagreed with its decision or required additional information or further reports or documents he ought ask Allianz for a "review". The plaintiff was also advised of his right under s 21 of the Act to apply to this Court for a determination within six months of the receipt of Allianz's letter of 14 December 2012. 11Following receipt of Dr Schwartz's report of 3 July 2013, Allianz again wrote to the plaintiff on 10 July 2013 advising him that the surgery proposed by Dr Diwan "is not reasonably necessary as a consequence of your infirmity, as required under section 60 of the Workers Compensation Act 1987" and that as a consequence of that decision they would not approve payment of that treatment pursuant to s 12D of the Act. That had been made by a "Level 1 Case Manager" and was reviewed and confirmed by a "Team leader". Again, the letter from Allianz invited either a review by Allianz itself or invited an application to this Court pursuant to s 21 of the Act. 12In essence, the defendant's position is that the defendant had no power to make the decisions of 14 December 2012 and 10 July 2013 and therefore, there is no power in this Court to make any appropriate finding. 13It is abundantly clear that Allianz, as the delegate of the defendant, approached the plaintiff's claim as if it were a claim under the Workers Compensation Act 1987. It is perhaps convenient to start with that Act which I shall refer to as the 1987 Act. Section 59 of the 1987 Act defines what is meant by "medical or related treatment". There is no dispute that the treatment proposed by Dr Diwan falls within that definition. Section 60 of the 1987 Act imposes liability on an employer for the payment of medical or related treatment. The relevant provisions of s 60 are these: "(1)If, as a result of an injury received by a worker, it is reasonably necessary that: (a)any medical or related treatment (other than domestic assistance) be given, or (b)any hospital treatment be given, or (c)any ambulance service be provided, or (d)any workplace rehabilitation service be provided, the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2). (2A)The worker's employer is not liable under this section to pay the cost of any treatment or service (or related travel expenses) if: (a)the treatment or service is given or provided without the prior approval of the insurer (not including treatment provided within 48 hours of the injury happening and not including treatment or service that is exempt under the WorkCover Guidelines from the requirement for prior insurer approval), or... (3)Payments under this section are to be made as the costs are incurred, but only if properly verified. (5)The jurisdiction of the Commission with respect to a dispute about compensation payable under this section extends to a dispute concerning any proposed treatment or service and the compensation that will be payable under this section in respect of any such proposed treatment or service. Any such dispute must be referred by the Registrar for assessment under Part 7 (Medical assessment) of Chapter 7 of the 1998 Act, unless the regulations otherwise provide." The 1998 Act is the Workplace Injury Management and Workers Compensation Act 1998. 14It is clear to me that Allianz, in making the decisions which it did, did so pursuant to s 60(2A)(a). However, there may be a like power under other legislation. Subsection (2A) was inserted by Act number 53 of 2012 and commenced on 27 June 2012. However, it is retrospective. Subsection (5) was inserted by Act number 101 of 2010 and commenced on 1 February 2011. Subsection (5) was clearly inserted to overcome the decision of Sheahan J in Widdup v Hamilton [2006] NSWWCCPD 258. 15However, it has been submitted by both the plaintiff and the defendant that s 60 of the 1987 Act is not directly relevant to the current proceedings. The plaintiff has no direct entitlement to workers compensation benefits. He is in receipt of a hurt on duty pension under the Act. 16Section 12D of the Act is headed, "Gratuities to members hurt on duty in respect of loss of limbs, medical expenses, etc". The substance of the section is this: "(1)STC may pay to a member of the Police Force who is hurt on duty or to a former member of the Police Force who was hurt on duty when he or she was a member of the Police Force a gratuity of such amount as STC determines, not exceeding the amount that, in the opinion of STC, would have been payable to the member or former member under Divisions 3, 4 and 5 of Part 3 of the Workers Compensation Act 1987 if the member were, or the former member had been, a worker for the purposes of that Act. (2)STC may pay a gratuity to a member of the Police Force under this section notwithstanding that the member is not discharged from the Police Force as a result of being hurt on duty. (3)STC shall not grant a gratuity under this section to a member or former member of the Police Force unless: (a)an annual superannuation allowance is payable to the member or former member under section 10 in respect of an infirmity of body or mind arising out of the same injury to which the claim for the gratuity relates, or (b)where an annual superannuation allowance is not so payable, the injury to which the claim for the gratuity relates is determined, pursuant to subsection (4) or on appeal, to have been 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. (4)Where a member or former member of the Police Force claims a gratuity under this section (otherwise than in respect of an injury referred to in subsection (3)(a)), the Commissioner of Police must: (a)decide whether or not the injury to which the claim 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, and (b)give written notice of the decision to STC and to the claimant. (5)Despite any other provision of this section or any other provision of this Act, a gratuity or part of a gratuity payable under this section may, with the approval of the Minister, be paid by a person other than STC and from a source other than the Fund." STC is defined in s 1(2) of the Act as the SAS Trustee Corporation continued under the Superannuation Administration Act 1996. In essence, the current defendant is the administrator of the Police Superannuation Fund and therefore the administrator of the superannuation scheme established under the Act. Such is formally set out in the definition of "STC Fund" and "STC Scheme" in s 4 of the Superannuation Administration Act 1996. 17Section 12D does not on its face permit the defendant to pay hospital, medical and like expenses directly to the provider of such a service but requires that the STC pay a gratuity to the member or former member of the Police Force who is entitled to benefits under the Act of an amount equal to the cost of the service. On its face, s 12D appears to mandate that the service be paid for by the member or former member of the Police Force before he can be reimbursed for the cost of it by the defendant. On its face, s 12D appears to be an indemnity provision. 18A person aggrieved by a decision of the defendant has a right of appeal to this Court. Section 21(1) provides that a person who considers himself aggrieved by a decision made by the STC on a matter "that arises under this Act by reason of a member of the Police Force being hurt on duty" may apply to this Court within six months of notification of the decision that has been made by the defendant. Formerly, this application was known as an appeal but in light of the case law which determined that such an "appeal" was a hearing de novo the terminology of s 21 was amended. Under s 21(4) of the Act, this Court may either confirm the decision of the STC or set it aside and replace it by a different decision. The Court is also required by s 21(5) not to make a decision unless the STC could pursuant to the Act make that decision. In other words, this Court cannot make a decision that the STC could not make under the Act. 19The noun "decision" is apt to describe not only the determination of the amount of a gratuity or a decision as to whether to pay a gratuity, but also a decision as to whether a gratuity might be payable. In other words, the noun "decision" is apt in my view to describe a preliminary decision to the ultimate payment of a gratuity under s 12D. 20As has been submitted very properly by the plaintiff, before a gratuity is paid for a hospital, medical or a like expense pursuant to s 12D the defendant is obliged to decide a number of things. They are: (1) that the person claiming the gratuity was a contributor to the Police Superannuation Fund; (2) that there is payable to the person an annual superannuation allowance under s 10 of the Act in respect of an infirmity of body or mind arising out of the same injury to which the claim for the gratuity relates; (3) that the medical, hospital or rehabilitation expense claimed falls within s 59 of the 1987 Act; (4) that the medical, hospital or rehabilitation expense claimed that does fall within s 59 of the 1987 Act is "reasonably necessary" as required by s 60 of the 1987 Act; and finally, (5) if the medical, hospital or rehabilitation expense claimed falls within s 59 of the 1987 Act and is reasonably necessary under s 60 that the amount to be paid by way of the gratuity falls within the rates prescribed between ss 61 and 64 of the 1987 Act. Mr O'Rourke, for the plaintiff, called in aid certain provisions of the Superannuation Administration Act 1996 which I shall merely refer to as the Superannuation Act. Section 3 of that Act sets out its objects. The third identified object is, "to set out the functions and responsibilities of trustees and service providers for State public sector superannuation schemes". In the Superannuation Act "benefit" means "a pension or lump sum retirement or superannuation benefit." The word "benefit" used in the Superannuation Act covers a gratuity under s 12D. Section 49 of the Superannuation Act makes the current defendant a trustee for a number of "STC schemes" which clearly includes the scheme established under the Act. Section 50 describes the principal functions of the defendant. They include the administration of an STC scheme, a requirement to ensure that benefits payable to persons entitled to receive benefits under an STC scheme are paid in accordance with the Act under which the scheme is established or constituted and a requirement to determine any disputes arising under such an Act. 21Section 51 describes certain duties of the defendant relating to its functions. One of those duties is to ensure that its functions relating to an STC scheme are exercised in the best interests of persons entitled to receive benefits under the STC scheme. Amongst other things, in exercising its functions the STC must have regard to the interests of persons entitled to receive benefits under the STC scheme (s 50(2)(a)) and the future liabilities of STC funds (s 51(2)(c)). 22Section 57 is headed, "Powers of STC" and provides this: "Without limiting any other function conferred or imposed on it, STC may do all things that are necessary or convenient to be done for, or in connection with, the exercise of STC's functions." 23The plaintiff argues that in acting in the best interests of persons such as himself the STC can make a decision as to whether it will pay a benefit if certain things happen in the future and furthermore, that it is both necessary and convenient, or necessary, or convenient that such be done in the circumstances of a case such as the present one. 24Spinal surgery is not lightly embarked upon, is major operative treatment, and can be very costly. Often, injured persons are unable to pay for costly hospital and medical treatment unless there be an insurer who is prepared to pay for the cost of such surgery. This was established over a hundred years ago in workers compensation jurisprudence or perhaps I should say workers compensation practice. In the workers compensation jurisdiction there arose a practice of making a "declaration of liability" or a finding that proposed future treatment was reasonably necessary as a result of injury in order to enable a worker to have such treatment paid for and in order to find medical practitioners and institutions which were prepared to render the service to the injured worker. 25How such a practice arose was discussed by the full Bench of the Supreme Court of this State in Telicki v Tennyson Textiles Pty Limited [1960] 34 WCR119. The principal judgment of the Court was given by Owen J with whom Brereton and Walsh JJ concurred. Commencing at 131 his Honour said this: "This involves a consideration of the nature and effect in New South Wales of what has become to be called a declaration of liability. In Devine v Brown's Wharf Limited [1949] WCR 70 at p 72 his Honour Judge Rainbow traced the origin and reason for such a declaration being made in England. His Honour said: 'It seems to me that the fact that future operative treatment will incapacitate you, is in itself no basis for a declaration of liability. It seems to me that the so called order in King v The Port of London Authority [1920] AC1 - it was not the first by any means, but it was about the first time it was considered in the House of Lords - is basically a procedural device to prevent the worker or the applicant from being shut out from any future rights he may have as against the present respondent, his employer at the time of the injury, where he is unable to prove present incapacity. There may be a liability in the sense that, although the worker does not make a claim for compensation he may be entitled to establish the injury, but he may not be entitled to have an award made, because there is a difference between a physical incapacity arising without causing time off from work, and economic loss. There are some types of injury which do not cause any time to be taken off from work, even a short time. 'The decision in King v The Port of London Authority was made because of the peculiar, limited nature of the jurisdiction of the arbitrator, who was, almost invariably, a County Court judge. Its purpose was to keep alive cases in which it had been established that although there was a contest in a number of the issues, presumably most of which or all of which would have been found in favour of the workman, yet there being no present incapacity there was no basis for an award.' "He went on to say, at pp, 73 - 74, to say: 'I will simply make an order in the form in which I made one the other day, which I think is the type set out in Athey v United Steel Company Limited (1935) 28BWCC 435 [C.A.], where the apparent, underlying fact was that the man having satisfied that particular tribunal that there was a reasonable prospect of incapacity from the injury, the proceedings were kept alive so that he would not be precluded from any particular rights he had. I think that meets the case, although I do not think it is necessary, because what I propose to do is perhaps only a soft hearted way of saving up the question of costs. If I refuse the award straight out there is nothing in the wide world to stop Mr Devine suing the respondent for compensation when in fact he has become incapacitated. I do not think the proper purpose of this sort of application is to pre judge, either as a matter of convenience or because it may as well be done now as later, any of the issues that could arise between the parties. Certain defences are not likely to succeed now before me in view of the opinions I have expressed. In looking at the cases generally, I question whether these applications should be brought at the stage they are being brought. It leaves open certain defences to the respondent in any event. Whether a particular period of incapacity when it occurs is a result of an injury is an issue always open to a respondent to raise, even where there has been a declaration of liability...The old type of order in King v The Port of London Authority simply brought back into Court for the Court or the arbitrator to decide any issues upon which the parties could not agree. The purpose was to avoid the arbitrator being functus officio, or to avoid, in the future hearing when prospective incapacity crystallises, a defence of res judicata.' "Not long afterwards in the case of Waters Trading Company v Eade [1950] WCR 140 this Court considered the effect of a declaration of liability. Street CJ speaking for the Court, said at p 141: 'The phrase "Declaration of Liability" is a term of art, and it seems to me possibly unfortunate that it has been imported into the procedure of Courts in this State. It originated in England, where a declaration of that nature was devised in order to prevent what was described as a "lamentable" or "disastrous" result which would otherwise follow in connection with the operation of the comparable English statute. The form of the declaration was settled and approved by the House of Lords in King v The Port of London Authority [1920] AC1, and was designed to meet the case of a workman who had suffered an accident but could not show any immediate incapacity, though it was probable that incapacity would arise in the future. Prior to 1920, in many cases awards had been made for payment at the rate of 1 penny per week as a nominal payment for a present non existing incapacity in order to preserve the right of a worker to apply in the future when, and if, a substantial incapacity supervened. The form of the declaration made in King's case was in the following terms: "Declare that the appellant has received an injury by accident arising out of and in the course of his employment; but, in as much as the evidence has not established that, up to the date hereof, the appellant has, as a result of such injury, been incapacitated for work for any period, but has on the other hand established that there is a reasonable probability that such incapacity may ensue; order that the arbitration do stand adjourned, reserving to each of the parties thereto liberty to make such further application in the matter of the arbitration as he or they may be advised." 'It is conceded that under the present state of the law in New South Wales such a declaration is unnecessary in order to preserve the worker's right and to meet the situation with which the Court was dealing in King's case, in as much as no time limit is imposed upon the worker within which an application for an award must be made, and the powers of the Commission under s 36 to reconsider any matter which has been dealt with by, and to rescind, alter, or amend any decision or order previously made, make ample provision to meet the cases which the declaration was designed to meet in England. The Declaration of Liability appears to effect nothing in this State except as a statement of the reasons for an adjournment, which may be granted under the power conferred by s 38(b) of the Act. As was pointed out by the learned Chairman of the Commission in his judgment in the present case, if on the evidence no reasonable probability has been established that a future incapacity is likely to result, then 'it is customary to refuse the application for a Declaration of Liability without prejudice to the applicant to make further application for compensation, Declaration of Liability or otherwise', and the declaration, if made, does no more than give to a worker who expects to suffer from a later incapacity a sense of economic security. The matter is kept open so that any question of future rights or liabilities may be determined in the proceedings which have already been taken.'" 26Owen J, went on to quote a citation made by Street CJ from Athey v United Steel Company Limited and then his Honour pointed out that Street CJ in Waters Trading Company v Eade pointed out that the form of order made in that case differed from the form of order approved in King v The Port of London Authority but Street CJ did not think that the change of verbiage altered the effect of the declaration that had been made. Owen J went on to point out that he did not disagree with anything that had fallen either from Judge Rainbow or Street CJ. His Honour went on to categorise the declaration that had been made in Telicki's case as amounting in law to 'nothing more than a statement that the reason for adjourning the first application was that if some future incapacity arose the applicant could have the application relisted in order that any claim in respect of that incapacity might be litigated'. Telicki, of course, did not consider a declaration of liability with respect to proposed treatment although the background to that case was unsurprisingly a proposal that Mr Telicki undergo spinal fusion because of a low back injury. 27Notwithstanding what might be seen as a turn away from the concept of a declaration of liability, declarations continued to be made in the original Workers Compensation Commission and its successor the Compensation Court of New South Wales. I shall cite two judgments of that Court but point out that they contain in themselves reference to a number of other decisions of that Court. 28The first decision is Lupton & Ors v Better Care Pty Ltd (1996) 13 NSWCCR 246 a decision of Bishop CCJ. At 252 his Honour said this: "It is convenient at this stage to deal with the respondents' submission that this Court does not have power to make the declaratory findings referred to in the applications for determination. To say that this Court has no power to make declaratory orders is perhaps a little misleading. Declaratory orders do have specific meanings in various common law courts. However, in this particular Court it is instructive to note that the pleading document which commences proceedings is called an application for determination. This is because in the normal types of cases in this Court there are many questions to be determined in any individual case: for example, injury, incapacity, extent of any permanent impairment, entitlement to medical and hospital expenses and the like. Under the structure of the legislation these issues are determined and, if favourable to the claimant, have an ongoing effect unless the Court on application varies its earlier orders. "Reference to authority reveals a helpful discussion on declaratory orders in Telicki v Tennyson Textiles Pty Limited [1960] 34 WCR (NSW) 119 at 131. Examples of where the Court has accepted, without apparent demur from the respondent, the right to make orders affecting the parties in future are: Fathalizadeh v Health Commission, Compensation Court, No 6589/87, Burke J, 18 September 1989, unreported and Paull v Water Board (1989) 5 NSWCCR 23 [McGrath CJ]. In addition, in a more recent decision of Egan J in Brespro Pty Limited v Keenahan, Compensation Court, No 11155/91, 12 May 1992, unreported, the Court had no difficulty in finding power to make what could be (loosely) described as declaratory orders. It is of assistance also to note the remarks of Kirby P in Linpint Pty Limited v Hexham Textiles Pty Limited (1991) 23 NSWLR508 at 514. In discussing the effect of an order of the Victorian County Court, his Honour made the following remarks: 'The County Court of Victoria like any other Court of statutory jurisdiction, has no jurisdiction beyond that which Parliament has given it...For most purposes the County Court does not enjoy the powers inherent in the Royal Courts of Common Law - common please, the King's Bench and the Exchequer Chamber...There is nevertheless, a penumbra of power which may not be expressly stated in statute but which is necessarily conferred by statute by the very fact of creating a Court. It is therefore clothed with the powers that are necessary to enable it to act effectively within such jurisdiction...These are not inherent powers. They are better described as incidental statutory powers...' "I see no reason in principle why the appropriate questions in proceedings of this sort cannot be formulated for the determination of this Court." 29The other decision to which I should make reference is that of Ashford CCJ in McEvoy v Southern Cross Homes (Broken Hill) Inc. [2001] NSWCC 168. Her Honour commenced stating relevant case law at [28]. Her Honour refers to Gunter v Gunter [1966] WCR 21 two unreported decisions of Campbell CJ of CC, Chapman v Director General of School Education and Meredith v Barratt and Smith Pathology Pty Limited and the decision of Egan J in Brespro Pty Limited v Keenahan that was cited by Bishop CCJ. Her Honour also referred to a decision of Curtis CCJ in Carle v Readiskill Pty Limited where the issue was whether the proposed surgery (lumbar laminectomy and fusion) was reasonably necessary. Her Honour then referred to the decision of Bishop J in Lupton v Better Care Pty Limited which I have just cited. 30The Compensation Court consistently held that it had power to make a "declaration of liability" as to whether proposed surgery was reasonably necessary as a result of an employment injury. Under the Compensation Court Repeal Act s 7(5) this Court has the same powers as the Compensation Court. That subsection is in these terms: "For the purposes of the hearing and determination of proceedings by the District Court pursuant to this section, the District Court has the same jurisdiction as the Compensation Court had immediately before the repeal of the Compensation Court Act to examine, hear and determine matters." Similarly, s 142I of the District Court Act 1973 provides: "For the purposes of exercising its residual jurisdiction, the District Court has the same powers, authorities, duties and functions as the Compensation Court had under the Compensation Court Act 1984 immediately before 1 January 2004. The powers conferred by this section are not limited by any other provisions of this Division." The Division in question is Division 8A of Pt 3 of the District Court Act 1973 which relates to the "residual jurisdiction" of this Court. Insofar as the Compensation Court had power to make a "declaration of liability" as to proposed future medical treatment I accept this Court has the same power. 31However, in my view the better way of basing my decision is that it is both necessary and convenient for the current defendant to make a decision as to whether it will pay for medical treatment to be carried out in futuro for an injured member or injured former member of the NSW Police who has an entitlement to a hurt on duty pension under the Act, as argued by Mr O'Rourke. 32Furthermore, it must be borne in mind that the defendant itself has assumed that it has power to make the decisions which the plaintiff challenges. As I said towards the beginning of these reasons, it appeared to me that the defendants' delegate, Allianz, proceeded on the basis that this was a straightforward workers compensation claim when it was not. For example, in exhibit 1 is a circular known as "Factsheet 19" issued by the defendant to persons entitled to benefits under the Act. The document is headed "Benefit for medical and related expenses resulting from HOD injury (section 12D)". It recites that the administration of medical expense claims is undertaken by Allianz Australia Insurance Limited on behalf of the STC. There is a question: "What to do if I require treatment". It continues thus: "It is important to know whether the cost of a specific treatment or service will be covered by your claim. Please contact Allianz and ask to speak to your Allianz case manager before commencing any treatment or surgery." The document goes on to point out that Allianz will review the claimant's request for treatment and communicate "the outcome" to the claimant and his service provider. There is also a question: "What if my treatment is not approved?". The circular goes on to point out that a letter explaining the reasons for declining liability will be sent to the claimant by post providing the claimant with the option as to how to have its decision "reviewed". The document does contain a disclaimer. It is this: "The information contained in this fact sheet is intended as a guide only and is not a statement of the law and is not to be considered legal advice. You should seek independent legal advice if you require assistance on the application of the law to a particular situation or circumstance." 33A notation on the side of the second page of the document indicates that it was issued on 10 May 2013 after the first decision currently challenged by the plaintiff but before the second decision. In other words, the defendant holds itself out as someone who is prepared to make decisions on proposed medical treatment, as to whether it will pay for it or not. In those circumstances, the defendant is not in my view able to deny that it lacks the power to make the decision which it has made. There is a decision of Campbell CJ of CC to a similar effect on another issue arising under the present Act: Williams v Commissioner of Police (1994) 10 NSWCCR 350. 34I have enquired of the representatives of the parties whether any further reasons for judgment are required and I am told that none is so required. For those reasons, I find that the Court has jurisdiction to make a finding that the surgery proposed for the plaintiff is reasonably necessary as a result of the plaintiff's having been hurt on duty. 35HIS HONOUR: Now, when do you want that listed for hearing? Tomorrow? Friday? O'ROURKE: Would that were so. Your Honour, there's a practical consideration in this. Your Honour in the course of judgment made reference to the medical evidence which was before your Honour today. HIS HONOUR: You need further medical evidence? O'ROURKE: Yes, your Honour. An appointment has been arranged in relation to that but it doesn't occur until December, your Honour. HIS HONOUR: I can solve that problem easily. The balance of the case is stood over to the callover on 2 February 2015. O'ROURKE: Thank you, your Honour. HIS HONOUR: The Court will adjourn. O'ROURKE: Would your Honour make an order in relation to costs in relation to these-- HIS HONOUR: Yes. I order the defendant to pay the plaintiff's costs of the current hearing. O'ROURKE: Thank you, your Honour. STANTON: Thank you. HIS HONOUR: And that's by consent, in any event. O'ROURKE: Yes. ADJOURNED TO MONDAY 2 FEBRUARY 2015 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: 03 December 2014