Whether leave to appeal should be granted
7Notwithstanding the manner in which the parties were permitted to put their cases, we have concluded that the issues identified above should be dealt with on a leave basis except for the question of whether her Honour applied the wrong version of s 10B(1) of the PRS Act .
8The judgment appealed from shows a careful consideration, after reserving judgment, of complex factual issues that were before the Court at first instance. In relation to the factual matters, there was no allegation in the submissions by the appellant that the findings of fact were glaringly improbable, or contrary to incontrovertible fact in the sense discussed in Fox v Percy [2003] HCA 22; (2003) 214 CLR 188 at [127] - [129] and Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at 179.
9The appellant initially raised the contention that there was "no relevant s 67 dispute". On its face, this would be an issue of law, however, the appellant accepted that the appeal before her Honour was able to be properly dealt with and, furthermore, conceded during the appeal before the Full Bench that a dispute existed pursuant to s 67 of the SA Act: see discussion by the majority regarding the existence of a dispute under s 67 of the SA Act in Miles v SAS Trustee Corporation [2011] NSWIRComm 15 at [13], [15], [20].
10It is well settled that leave to appeal will not be lightly granted and will not be granted when the issues in the appeal have already been the subject of authoritative pronouncement, or when the issues raised on appeal were not argued at first instance. An appellate tribunal is ultimately concerned with the correction of error: see Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381; Perrott v XcelleNET Australia Ltd (1998) 84 IR 255 at 267; De Simone Consulting Pty Ltd v Ison [2000] NSWIRComm 91; (2000) 97 IR 478 at 482; Caltex Petroleum Pty Ltd v Harmer (1999) 92 IR 264; Ace Business Brokers Pty Ltd v Phillips - Treby [2000] NSWIRComm 163; (2000) 100 IR 420 and Hosemans v Commissioner of Police (No 4) [2005] NSWIRComm 409; (2005) 150 IR 263 at [5].
11We consider that, in matters such as the present, unless there are errors of law or principle, or errors of fact of substance (in the sense that such errors of fact can reasonably be said to have affected the exercise of discretion under challenge), it would not be appropriate in the usual course to grant leave to appeal.
12We observe that the judgment of Backman J contains a careful analysis of the factual circumstances before the Court. Her Honour approached the matter in terms of the authorities binding on her and dealt with the matter in terms of the relevant principles. Her Honour's conclusions, seriatim on the various matters falling for decision, included the following:
[25] The issue of which version, if any, of s 10B(1) should apply, will need to be considered at a later stage. Returning to the present issue under consideration, it is the Court's view that the appellant's request made on 7 July 2008 to add infirmities to the Certificate, without more, cannot, on the broadest characterisation, amount to a "dispute" (which must be determined) contemplated by the terms of s 67.
[26] That is not, however, the end of the matter. The appellant relied on evidence tendered during the proceedings that, it was said, would provide support for a finding that the additional physical infirmities now sought to be added to the Certificate had been omitted from that Certificate because the appellant had been overwhelmed by his psychological infirmities at the time he completed his application for medical discharge. This evidence, if accepted, would, according to the appellant, provide a proper basis for the existence of a dispute between the parties within the terms contemplated by s 67.
[27] The respondent conceded that if the evidence on this issue was accepted by the Court then that would provide a "cogent reason" for the respondent to "potentially revisit the terms of the original s 10B(1) Certificate".
[28] I intend, therefore, to consider the evidence relied upon to establish whether or not the appellant was so overwhelmed by the extent of his psychological injuries at the time he completed his application for medical discharge that he omitted, at that time, to include his physical infirmities, namely, his knee injuries and his hearing loss and tinnitus.
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[41] The following exchange then took place between the Bench and the respondent:
HER HONOUR: Isn't another way of looking at it that, yes, it is a very comprehensive application on the part of the appellant but it was done in circumstances where the uttermost (sic - uppermost) reason was the psychological symptoms and in circumstances where the appellant had no legal advice and those matters, together with the evidence, would not necessarily discount the fact that the physical injuries were also very real and also incapacitating at the same time.
OWER: I accept the first part, your Honour, but in terms of the physical matters being incapacitating at the same time, we are talking about an Inspector of Police who was making application for medical discharge and he does not mention his knee operation within the context of his psychological condition. Although I take on board what your Honour says about, yes, he was focussed on the psychological condition, there is no doubt about that, to neglect to actually say anything about the knees when your Honour has heard quite strident evidence about the problems he was encountering at the time is a little inconsistent, with respect.
HER HONOUR: His knees?
OWER: Yes, your Honour. The submission I make is the one I place there, the more likely explanation is the knees were not incapacitating at that time.
HER HONOUR: That would require me to make an assessment of reliability of the evidence on this issue, wouldn't it, the reliability of the appellant's evidence on that issue.
OWER: Yes, your Honour - and indeed I don't suggest to your Honour in any way that Mr Ainsworth hasn't attempted to be truthful. It is simply the accuracy of what he says.
[42] The acceptance by the respondent of the first limb of the proposition suggested by the Bench is consistent in one significant respect with the appellant's evidence that he was in fact focused primarily on his psychological injuries at the time he completed his medical discharge application. The respondent's primary contention on this issue was that the appellant's failure to mention his knee injuries was not consistent with the appellant's evidence that his knee injuries were incapacitating. The respondent accepted, however, that the appellant was a truthful witness, it was the accuracy of his evidence (or some of his evidence) that was in issue.
[43] The effect of the appellant's evidence on the issue, therefore, is that he was primarily focused on his psychological injuries at the time he completed the application and the failure to include his physical injuries in his application may be attributed to an oversight on his part. Given this matter, a "cogent reason" (to use the respondent's terminology), in my view, exists to revisit the terms of the s 10B(1) Certificate. What falls next for consideration is whether the appellant was incapacitated by his physical injuries at the time of completing his medical discharge application.
Which version of s 10B(1) applies?
[44] This consideration raises the necessity to decide which version of s 10B(1) applies to the appellant. As indicated earlier, the appellant contended that the most recent version applied. The respondent contended for the earlier version.
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[53] In the present proceedings the Court has been asked to effectively "stand in the shoes" of the respondent and determine whether the application to amend the Certificate should be granted. There was no issue that the Certificate may be amended: Barnes at p4; Commissioner of Police v SAS Trustee Corporation [2002] NSWIRComm 31 at [23].
[54] The respondent submitted that, "one must be wary of ... interference with rights that have already crystallised and the rights so far as the s 10B(1) Certificate have well and truly crystallised".
[55] No other submissions of substance were relied upon or advanced by either party on the issue. It is my view that the recent amendment to s 10B(1) (there was no contest that the relevant change to s 10B(1) constituted an amendment) involves a change to a procedure, that is, a procedure which prescribes how a police officer who is medically discharged may be granted an annual superannuation allowance or gratuity under s 10 of the PSR Act. It is a necessary pre-condition to the grant of a benefit under s 10 that the police officer be certified as incapable in accordance with the terms of the provision. The provision therefore has prospective, or future, operation and merely takes account of antecedent facts and circumstances as the basis for the determination as to whether or not to grant the certificate (as a pre-condition to the grant of a benefit).
[56] The application and significance of procedural provisions to past events was considered by the High Court in Rodway v The Queen (1990) 169 CLR 515 at 518:
The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance.
Was the appellant "incapable" by reason of his physical infirmities?
[57] I return to consider the outstanding issue whether the appellant was "incapable" in accordance with the provisions of s 10B(1). Before embarking on an analysis of the facts, it is necessary to mention one further matter. In Woodlands v SAS Trustee Corporation (2001) 109 IR 132, Hungerford J formulated the test to be applied when considering whether to add a further specified infirmity or specified infirmities to a certificate granted under s 10B(1). According to Hungerford J, it is not open to add another infirmity unless that infirmity was causally connected to the incapability of the police officer to perform his or her duties (at [38]). The test was approved by a Full Court in SAS Trustee Corporation v Daykin (2002) 115 IR 172 at [29].
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[74] In submissions, the appellant acknowledged that with regard to his tinnitus, he was, "on thinner ground than either the right or the left knee". The respondent submitted that in the absence of evidence in support, the appellant's evidence of the existence and extent of the condition while a serving member of the police force amounts to no more than, "he might have misunderstood people ... but that does not amount to an incapacity".
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[81] The medical evidence suggests ongoing problems in particular to the appellant's right knee (Dr Thomson, for example). Dr Scarf concluded in May 1994 that the appellant could perform police duties "of a fairly sedentary nature". Dr Scarf noted extensive pathology to the right knee. In his opinion, it was unlikely that the appellant would be able to jog, play active tennis or other sporting games. In January 1995, Dr Bryan concluded that the appellant would have difficulty "with the work he is normally expected to do, or if he had to engage in more strenuous activities of a police officer that is on routine duty".
[82] This evidence, in combination with the appellant's evidence, is strongly supportive of a finding, consistent with the requirements of s 10B(1), that the appellant, at and prior to his medical discharge, was incapable because of his injured knees, of personally exercising the functions of a police officer referred to in s 14(1) of the Police Act . I therefore determine, and certify under s 10B(1), that the appellant is incapable from the specified infirmity, namely, the injury to his right knee and the injury to his left knee, of personally exercising the functions of a police officer referred to in s 14(1) of the Police Act .
[83] This finding results in the appeal being allowed. I note, however, that the Certificate granted on 26 November 1997 did not, in terms, conform precisely to the words of s 10B(1), as it was then in force. Given my findings that the Certificate should be amended and that the most recent version of s 10B(1) should apply, there may be some uncertainty as to the form that the amendment should take. On my reading of the Certificate of 26 November 1997, it may reflect s 10B(1) in its most recent form where it certifies that the appellant is "incapable ... of discharging the duties of his office and any other office in the police force " (my emphasis). So there is no doubt about this, however, I intend to give the parties liberty apply in order to place before the Court, if it be thought necessary, any submissions that they may wish to make, on the precise wording of the amended Certificate which properly reflects and conforms to the current form of s 10B(1).
13It appears to have been accepted by both parties that a certificate under s 10B(1) of the PRS Act could be subject to amendment by the trustee: see Barnes v Commissioner of Police for New South Wales and Anor (unreported, Carruthers J, Supreme Court, 19 October 1994) at 4 and Commissioner of Police v SAS Trustee Corporation [2002] NSWIRComm 31 at [29]-[30].
14The respondent did not seek to claim incapacity in respect of his injured knees at the time of his discharge. Moreover, the amendment to include a reference to knees was sought ten years after the original certificate under s 10B(1) was issued and the respondent had relied on the terms of the certificate for two increases in superannuation allowance in 1998 and 2007 respectively, and a part commutation in the intervening period.
15This did raise in our minds whether Backman J's finding that the respondent's failure to include knee injuries in the original certificate was an oversight was a finding that was "glaringly improbable". As the appellant submitted, an amendment to a certificate should not be lightly made, especially if it has been relied upon subsequent to when it was originally made to achieve increases in the superannuation allowance.
16However, having regard to her Honour's careful examination of the issue and the evidence relied upon by her Honour, including the medical evidence and the evidence of the respondent himself, we are unable to conclude other than that her Honour's findings were open to her.
17In this regard we also note what the High Court said in Mace v Murray [1955] HCA 2; (1955) 92 CLR 370 at 378:
Moreover, the order of McLelland J. was made with the advantage of having seen and heard the witnesses, and particularly the parties, as they were examined and cross-examined in the witness-box; and that was an advantage not only in considering the credibility of the witnesses but also in appreciating the character and personality of each of the three persons whose future relationship to the child the court had the responsibility of deciding. The case was pre-eminently one for the application of well-known words originally used by Lord Shaw and since approved by other learned lords: "In my opinion, the duty of an appellate court in those circumstances is for each judge of it to put to himself ... the question: Am I - who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the judge who heard and tried the case - in a position, not having those privileges, to come to a clear conclusion that the judge who had them was plainly wrong? If I cannot be satisfied in my own mind that the judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment": Clark v. Edinburgh & District Tramways Co. Ltd. (1919) SC (HL) 35 , at p 37; see Powell v. Streatham Manor Nursing Home (1935) AC 243 , at p 250; Watt or Thomas v. Thomas (1947) AC 484 , at p 488.
18In respect of the three matters we earlier identified we are unable to conclude that the application for leave to appeal raises issues of such importance in the public interest that leave to appeal should be granted.