Reitano v. Commissioner of Police [2004] NSWCA 99

(i) continuing pressure following his treatment by the police service after the adverse mention made of him at the Police Royal Commission. Included in this part of his claim was the alleged mis-management of the matter by the then Assistant Commissioner Jarrett and the police service generally;

(ii) the high workload at Green Valley Local Area Command to which he was assigned following his return to full duties; and

(iii) a "sensitive matter" that the appellant was involved in at Green Valley. 10 The claim was rejected by the Assistant Commissioner and the appellant appealed to the Tribunal pursuant to s.186 of the Police Act.

Proceedings before the Tribunal 11 In order to be entitled to the benefits which he claimed, it was necessary for the appellant to establish that he was "injured in such circumstances as would, if he were a worker within the meaning of the Workers Compensation Act 1987 , entitle him to compensation under that Act; …":

Police Regulation (Superannuation) Act 1906; s.1(2) 12 The Tribunal was satisfied that the appellant had suffered an "injury" as defined in the Workers Compensation Act: s.4 and that his employment "was a substantial contributing factor to the injury" as required by s.9A of that Act. The question then arose as to whether the provisions of s.11A of the Workers Compensation Act operated so as to bar his claim for compensation. That section provides, relevantly: "11A No compensation for psychological injury caused by reasonable actions of employer. (1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer in respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers." 13 The Tribunal dismissed the appellant's appeal. It considered that Assistant Commissioner Jarrett had acted reasonably in the way the allegation made against the appellant at the Royal Commission was managed and dealt with. The Tribunal commented at para.16.22: "[t]hat the appellant felt continuing pressure following his adverse mention is no doubt understandable, but after Commander Schuberg had suspended the appellant from office with salary pending determination of his conduct, the Tribunal is at a loss to see what it was that the Police Service could do to alleviate the appellant's problems. …" 14 The Tribunal further held that the two additional matters relating to his service at Green Valley were not substantial contributing factors to the aggravation of his injury. There is no appeal from this part of the Tribunal's decision.

Issues on the appeal 15 The appellant contended on the appeal that the Tribunal erred in law in that it failed to properly apply the provisions of s.11A in the determination of the appellant's claim. 16 In this regard the appellant made three specific complaints. First he contended that the Tribunal had failed to determine in respect of which, if any, of the matters specified in s.11A, the Commissioner had taken action. Secondly, it was submitted that the Tribunal had failed properly to apply the statutory requirement that action be taken "with respect to" the facts as found. Thirdly, it was submitted that there was no legal foundation for standing down the appellant, so that the action taken was not reasonable. It was further submitted that the later suspension of the appellant on 1 April 1996 was not reasonable as it was based on evidence that was known to be tainted. 17 The "weighing up" exercise undertaken by the Tribunal in finding that the action taken by the Commissioner was reasonable was also challenged as being erroneous in law. In particular, it was submitted that in: "[b]alancing the interests of the appellant with those of the Police Service and the public interest "

the Tribunal had determined the wrong question under s.11A. The appellant further submitted that the Tribunal failed to disclose the evidence upon which it relied in forming the view that there was a public interest to be considered and that it was met by the actions of the New South Wales Police Service at that time.

Failure to apply s.11A 18 The appellant's primary argument was that the Tribunal failed to determine whether the action taken by the Police Service following his adverse mention in the Royal Commission was "with respect to" any of the matters specified in s.11A as there was no reference at all to this question in its reasons. If there was no determination of that question, it followed, on the appellant's submission, that he must succeed on the appeal as the Tribunal had failed to determine one of the statutory prerequisites for the operation of s.11A. It was not sufficient, on the appellant's argument, for the Tribunal only to deal with the question whether the action taken was reasonable and for it to be assumed that one of the specified matters in s.11A had been satisfied. The appellant did not contend, in terms, that the error of which he complained was a "failure to give reasons". 19 The respondent submitted that it was obvious that the relevant matter under s.11A was "discipline", and, being obvious, it must be implicit in the Tribunal's reasons that that was the case. It followed on this argument that there was no error of law in failing expressly to make a finding to that effect. 20 The appellant argued, however, that such an assumption could not be so readily made. It was possible, for example, that the action taken by the Commissioner was in respect to "transfer" or "performance appraisal". But it might also be the case that the Commissioner did not take action "in respect to" any of the matters specified in s.11A, but acted for some other reason. In that case, the appellant's claim would not be precluded by s.11A. Accordingly, it was necessary for the Tribunal to make an express finding on this question. 21 I agree that the absence of any reference to which of the matters in s.11A the action of the Commissioner related, if any, makes it difficult to know whether the Tribunal was satisfied, as it was bound to be, that one of the statutory prerequisites for the application of s.11A had been established. The respondent's resort to the argument that the matter was obvious is a satisfactory response if the only available finding on the evidence was that the action was taken "in respect to … discipline". Once the argument is crystallised in that way, it becomes necessary to consider a number of the specific issues raised by the appellant, to determine whether the respondent's argument that the matter is obvious, can withstand scrutiny.

Power to stand down 22 The first of those issues relates to the question of what power the Commissioner had to stand down the appellant. 23 Assistant Commissioner Jarrett said in evidence that he had acted on the Commissioner's power in s.8(3) of the Police Act. Section 8 is contained in Pt 2 of the Police Act entitled "NSW Police". The provisions of Pt 2 include the establishment (s.4) and composition (s.5) of the NSW Police; its mission and functions (s.6) and the statement of values of its members: s.7. Section 8, which is headed "Commissioner to Manage and Control NSW Police" provides: "(1) The Commissioner is, subject to the direction of the Minister, responsible for the management and control of NSW Police. (2) The responsibility of the Commissioner includes the effective, efficient and economical management of the functions and activities of NSW Police. (3) The Commissioner may classify the various duties that members of NSW Police are required to perform and allocate the duties to be carried out by each such member . (4) The Commissioner may issue (and from time to time amend or revoke) instructions to members of NSW Police with respect to the management and control of NSW Police. (5) This section is subject to the other provisions of this Act and the regulations."

(emphasis added) 24 Part 9 of the Police Act deals with police conduct. In the form in which it was in 1996, when the appellant was stood down, Pt 9 was entitled "Discipline of Members of the Police Service". Under the provisions of Pt 9, the Commissioner could direct the preferment of a departmental charge or the institution of court proceedings: s.173(1), or admonish the officer for conduct if the Commissioner considered the conduct was unsatisfactory but did not justify action under sub-section(1): s.173(2). Sections 174-178 dealt with the hearing and determination of a departmental charge including provisions for review. 25 If a departmental charge or criminal charge against an officer was proved, the Commissioner could take such action against the officer as the Commissioner considered appropriate: s. 179(1). 26 Section 182(1) provided for a right of appeal to GREAT against a decision of the Commissioner to punish the police officer; including against a decision to suspend the officer: s.182(1)(d). 27 Section 181 provided for the making of regulations relevantly for or with respect to, the discipline of police officers. Regulation 40 provided: "(1) If the Commissioner has reasonable cause to believe that the conduct of a police officer has been such as to justify disciplinary action or the institution of criminal proceedings against the officer, the Commissioner may suspend the officer from office (with or without pay) pending further investigation and decision as to the action to be taken." (emphasis added) 28 There was no provision within Pt 9 of the Act as it applied in 1996, and no power in the regulations, to "stand down" a police officer. 29 Both at the hearing and on the appeal the appellant contended that Assistant Commissioner Jarrett had no power to stand him down under s.8(3) as he purported to do. That section was not, on the appellant's submission, a source of disciplinary power so that the action taken in "standing him down" was unlawful. The appellant submitted that action that was unlawful could not be "discipline" within the meaning of that term in s.11A. Alternatively, it was submitted that, if such action, (assuming it to be unlawful), could, nonetheless fall within the statutory ambit of the word "discipline", it could not be reasonable. Put simply, "unlawful action" could not be "reasonable action" within s.11A. 30 As the appellant had put in issue the question whether s.8(3) was a proper source of power to stand him down and that question was relevant to the question whether the action taken was in respect to a s.11A matter and to the further question whether the action was reasonable, it was necessary for the Tribunal to determine each of those questions as part of its consideration of the question whether the appellant's claim was precluded by s.11A. In the only reference to these matters the Tribunal said: "16.6 Mr. Jarrett testified that he was confident that the Commissioner of Police or his delegate had the power to employ an officer on any duty the Commissioner felt was necessary in the interests of the Police Service which is what was done on this occasion concerning the appellant. The appellant had alleged that the standing down of himself was 'unlawful'. Mr. Jarrett is of the opinion that he had the power to stand down an officer under s.8 of the Police Service Act 1990. Mr. Jarrett rejects the appellant's complaints regarding his managerial competence. The Tribunal finds that Mr. Jarrett was a credible witness and accepts his testimony concerning the propriety of action taken in respect of the appellant and the basis for that action ." (emphasis added) 31 In my opinion there was no determination in this passage of the specific question whether s.8(3) could be used as the basis of a power to "stand down" the appellant. The failure to determine that question was an error of law as it was a failure to determine one or more of the matters integral to the question whether s. 11A operated in this case. As the specific question relating to s.8(3) was not determined, the 2 questions which arose consequentially were not answered, thus compounding the original error of law. 32 Before concluding the issues raised in relation to s.8(3) I should refer to the further debate had in the course of the hearing of the appeal as to whether the Tribunal's reasons at para. 16.6 (quoted above) that it "accepts [Mr. Jarrett's] testimony concerning the propriety of action taken in respect of the appellant and the basis for that action" (my emphasis) was a finding on the question of the lawfulness of the exercise of power under s.8(3).

33 For my part, I do not consider that para. 16.6 bears that meaning. But even if that is the correct interpretation, it reveals an error of law in itself. The question whether the exercise of a power or action taken is authorised by a statutory provision is a question of law. As such, it was for the Tribunal to determine the matter for itself. It could not delegate that part of its decision making process or defer to a lay determination of the issue. The fact that Assistant Commissioner Jarrett believed he had the power to act under s.8(3) does not resolve the question of law whether he was entitled so to do. 34 But in any event, s.8(3) does not, in my opinion, confer that power. As is apparent from the review of Pts 2 and 9 of the Act undertaken above, Pt 2 deals with the formal establishment and functions of the police service and specifies that the Commissioner has the overall management and control of the police. Section 8 is specifically made subject to the other provisions of the Act and the regulations. Pt 9 deals with discipline. If there was a power to stand down, it would be expected to be found in Pt 9 or under the regulations and there is no such power. More specifically, the express terms of s.8(3) do not lend themselves to such a construction. It is one thing to classify and allocate duties. It is a very different thing to stand down an officer from duty. To stand down is not to classify or allocate duties. Thus, had the Tribunal determined that the Commissioner had power under s.8(3) to stand down the appellant, that finding would have involved an error of law.

35 It follows that in my opinion there was an error of law in the Tribunal's failure to determine whether s.8(3) was a proper basis under which the appellant could be stood down. That error is sufficient for the appellant to succeed on the appeal. That error also demonstrates, in my opinion, that the Tribunal did not consider the question whether the action taken in standing down the appellant was taken in respect to any of the matters specified in s.11A, being the principal ground alleged on the appeal. If it had turned its mind to that question it would, of necessity, have had to turn to the other questions which arose once the power to act under s .8(3) was put in issue. It did not. The failure to deal with any of those questions underscores my conclusion that the Tribunal did not make any determination in respect of that part of s.11A. Its failure to do so was an error of law. 36 This conclusion makes it strictly unnecessary to determine the other bases upon which the appellant contended the Tribunal erred in law and there are difficulties in doing so, as the ultimate determination of those matters will depend, to some extent, on the determination of the questions on which the appellant has succeeded. This is particularly so, given that the question under s.11A is whether the psychological injury was wholly or predominantly caused by the action taken, providing, of course, that s.11A was otherwise satisfied. However, at least the following observations should be made in respect of the other issues raised on the appeal.

Power to Suspend 37 Even though the appellant did not contest the power of the Commissioner to suspend him, it is not apparent from the transcript before the Tribunal that he conceded that the Commissioner had "reasonable cause to believe" that the appellant's conduct was such to justify disciplinary action as required by reg. 40. Nor is there any finding to that effect in the Tribunal's reasons. Indeed it is questionable whether the Tribunal considered the basis upon which the appellant was suspended or whether, in any event, there was a basis in fact upon which the Commissioner could have acted under reg. 40: see further, para. 38 below. To the extent that it turned its mind to the question, it appears to have been no more than recording that the appellant was suspended from 1 April 1996. In the absence of more extended argument on this point, I do not consider it appropriate to deal with the question more fully. However my concern as to the extent to which the Tribunal dealt with this question adds to the reasons why, as I ultimately conclude, this matter should be returned to the Tribunal for redetermination.

Acting on tainted evidence 38 There was also the further question whether, by acting on evidence that was known to be tainted, the suspension was reasonable. That question itself may be subject to further refinement, depending upon the question of when the Commissioner should have ceased taking action against the appellant, given that it became known at a fairly early stage that the evidence in the Royal Commission upon which Assistant Commissioner Jarrett originally purported to act, had been discredited. None of those matters were subject to consideration and determination by the Tribunal and yet they were integral to the issues raised by the appellant in respect of s.11A.

The public interest 39 Finally, there was the question whether the Tribunal erred in the manner in which it dealt with the question of the public interest. Again, it is not necessary for the Court to determine that matter. Senior counsel for the appellant informed the Court that it was subsumed by the other questions it raised on the appeal. As I understand the appellant's position, it was that if he was otherwise successful, he would agitate whether there was a public interest to be considered in any redetermination of his claim.

Conclusion 40 The appeal therefore should be allowed. 41 Counsel for the appellant initially submitted that this Court could redetermine the matter itself. The respondent opposed that course. 42 In my opinion the matter should be remitted to the Tribunal for redetermination. There are a number of questions of law to be determined in relation to the question whether s.11A precludes the appellant's claim. Those questions of law give rise to factual questions that also need to be determined. The Tribunal is best placed to make findings in relation to those matters. Accordingly, there should be a full redetermination of the appellant's claim.

2. Remit the matter to the Government and Related Employees Appeal Tribunal for redetermination in accordance with law.

3. The respondent to pay the appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act 1951 if so entitled. 44 TOBIAS JA: I agree with Beazley JA. **********

Last Modified: 08/04/2004 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.