SAS Trustee Corporation v Hazlewood

CATCHWORDS: POLICE -superannuation - appeal - appellant former police officer received medical discharge - no claim for hurt on duty - former police later claimed hurt on duty as a consequence of an injury causing infirmities - Later application by former police officer seeking to add post traumatic stress disorder (PTSD) as an infirmity causing incapacity to perform duties - at first instance held that former police officer suffered PTSD at time of discharge and that pursuant to the power of the respondent to engage in compromise under the Superannuation Administration Act 1996 primary judge held that claim for superannuation allowance should be allowed - appeal by respondent to Full Bench - Full Bench held there was no requisite notice by former officer of injury to Police Commissioner said to be causative of PTSD - also held by Full Bench compromise not available - leave to appeal granted - appeal upheld - costs reserved

SUPERANNUATION - appeal - police - appellant former police officer received medical discharge - no claim for hurt on duty - former police later claimed hurt on duty as a consequence of an injury causing infirmities - Later application by former police officer seeking to add post traumatic stress disorder (PTSD) as an infirmity causing incapacity to perform duties - at first instance held that former police officer suffered PTSD at time of discharge and that pursuant to the power of the respondent to engage in compromise under the Superannuation Administration Act 1996 primary judge held that claim for superannuation allowance should be allowed - appeal by respondent to Full Bench - Full Bench held there was no requisite notice by former officer of injury to Police Commissioner said to be causative of PTSD - also held by Full Bench compromise not available - leave to appeal granted - appeal upheld - costs reserved

Interpretation Act 1987 Police Regulation (Superannuation) Act 1906 LEGISLATION CITED: Subordinate Legislation Repeal Act 1985 Superannuation Administration Act 1996 Superannuation Industry (Supervision) Act 1993 Workers Compensation Act 1987

Commissioner of Police v SAS Trustee Corporation [2002] NSWIRComm 31; (2004) 131 IR 243 Commissioner of Police v SAS Trustee Corporation and another [2002] NSWIRComm 382 CASES CITED: Express Newspapers PLC v News (UK) Ltd [1990] 1 WLR 1320 Hazlewood v SAS Trustee Corporation [2008] NSWIRComm 215 Lembcke v SAS Trustee Corporation [2003] NSWCA 136; 56 NSWLR 736

Mr T Ower of counsel (Appellant) SAS Trustee Corporation LEGAL REPRESENTATIVES: Mr B Gross SC (Respondent) Walter Madden Jenkins Solicitors

CORAM: BOLAND J, President WALTON J, Vice-President STAFF J

Application by SAS Trustee Corporation for leave to appeal and appeal against a judgment of Justice Marks given in Hazlewood v SAS Trustee Corporation [2008] NSWIRComm 215

1 The issues, relevant legislative provisions, background facts and the judgment of Marks J at first instance are addressed in the judgment of Staff J in this appeal. There is no need for me to cover all of that ground again, except where it becomes necessary to do so in explaining my reasons.

Section 10B of Police Regulation (Superannuation) Act

2 Section 10B of the Police Regulation (Superannuation) Act 1906 ('PRS Act') at the relevant time was in the following terms: 10B Medical examination of disabled member and determination of whether hurt on duty (1) An annual superannuation allowance or gratuity must not be granted under section 10 to a member of the police force who is discharged unless the Board (having regard to medical advice on the condition and fitness for employment of the member) has certified the member to be incapable, from a specified infirmity of body or mind, of discharging the duties of his office. (2) An annual superannuation allowance or gratuity 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 that injury, (a1) where the regulations so require, the notification was in or to the effect of the prescribed form, and (b) the Board (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 the duties of his office at the time of his resignation or retirement. (2A) The Board may certify that a member of the police force is incapable of discharging the duties of the member's office only if the member is incapable of discharging the duties of the office in the police force in which the member is then employed and also any other office in the police force: (a) which is available to the member, (b) which is not lower in rank than the office in which the member is then employed, and (c) in which it would be reasonable to expect the member to be employed. (2B) The Board may certify that a former member of the police force would have been incapable of discharging the duties of the member's office if the member would have been incapable of discharging the duties of the office in the police force in which the member was employed at the time of the member's resignation or retirement and also any other office in the police force: (a) which was available to the member at that time, (b) which was not lower in rank than the office in which the member was then employed, and (c) in which it would have been reasonable to expect the member to have been employed. (2C) In this section: medical advice means the advice of: (a) 2 members of the Police Medical Board, or (b) any one or more medical practitioners nominated by the State Authorities Superannuation Board (3) 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 was a member of the police force, as the case may be, and (b) give the member or former member written notification of the decision. 3 There was no controversy over s 10B(1). It provides that an annual superannuation allowance or gratuity must not be granted to a member of the police force who is discharged unless the Board (now to be read as 'STC') has certified the member to be incapable, from a specified infirmity of body or mind, of personally exercising the functions of a police officer. 4 Section 10B(2) is the relevant provision at the centre of the controversy. It provides that there are three conditions that must be met before a former member of the police force who resigned or retired may receive an annual superannuation allowance or gratuity under s 10. The first condition is that the former member must have notified the Commissioner of Police before the member's resignation or retirement and within six months of receiving the injury which has caused the member's infirmity of body or mind, of that injury. The second condition is that if the regulations so require, the notification was in the prescribed form. The third condition is that STC (having regard to medical advice on the condition and fitness for employment of the member) has certified that the former member was incapable, from 'that' infirmity of body or mind (that is the infirmity referred to in s 10B(2)(a)), of personally exercising the functions of a police officer at the time of the member's resignation or retirement. 5 Section 10B(3) places a responsibility on the Police Commissioner. Where there has been certification, relevantly under s 10B(2), the Commissioner is required to decide whether or not the infirmity to which the certificate relates was caused by the former member having been hurt on duty when he or she was a member of the police force and the date or dates on which the former member was hurt on duty. Additionally, the Commissioner is required to give the former member written notification of the decision. 6 Thus, under the first condition in s 10B(2), before it may certify the former member's incapacity due to an infirmity of body or mind, STC is required to satisfy itself that notification of the injury that the former member claimed as having caused the infirmity has been provided by the former member to the Police Commissioner within the prescribed time. Presumably, that would require STC to make inquiries of the Commissioner to ascertain whether the member notified the Commissioner in accordance with s 10B(2)(a) of the injury that was claimed to have caused the infirmity. That is what appears to have been done in respect of Mr Hazlewood.

7 It was contended by Mr Ower of counsel for the appellant that: Because the statutory responsibility of the appellant is only to certify the infirmity, it does not really enter into whether that infirmity was caused by injury; it is only concerned with whether that cause of the infirmity has been notified. It is the next step for the Commissioner of Police to decide, after [STC] deciding infirmity, whether that infirmity is hurt on duty.

8 Section 10B(2)(a) is an odd provision. One wonders what would be the point of having a requirement for notification of an injury without any regard to whether it was causally connected to the claimed infirmity? It means that, provided the Police Commissioner advised STC that the former member notified an injury, and provided the notification was in the prescribed form, STC could proceed (subject to medical advice) to certify that an infirmity, entirely unrelated to the notified injury, made the former member incapable of discharging the duties of his or her office at the time of his resignation or retirement.

9 Mr Ower referred to what he contended was a strict demarcation between the functions of STC and those of the Police Commissioner under s 10B. His concern was that if STC were to enter into whether an infirmity was caused by an injury notified to the Commissioner, it would be intruding into the Commissioner's responsibility of determining whether the infirmity was caused by the former member having been hurt on duty when he or she was a member of the police force. I do not see why that necessarily follows. The Commissioner is required to decide whether or not the infirmity to which the certificate relates was caused by the former member having been hurt on duty when he or she was a member of the police force. 'Hurt on duty' is defined in s 1 of the PRS Act as follows: hurt on duty , in relation to a member of the police force, means 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. 10 The fact that the former member notified an injury does not necessarily mean that the infirmity arising from that injury was caused by the former member having been hurt on duty when he or she was a member of the police force. The question of whether the former member was hurt on duty seems to be an entirely separate question to whether a notified injury caused an infirmity. 11 Nevertheless, given its wording, there seems to be no alternative to construing s 10B(2)(a) as meaning that prior to certifying incapacity because of an infirmity of body or mind, all STC needs to be satisfied about is that the former member notified the Police Commissioner within the prescribed time of an injury that the former member claimed caused that infirmity. Medical discharge in 1998

12 This case reveals an unusual set of circumstances. On 23 June 1997, Mr Hazlewood made an Application for Medical Discharge. In his application, under the heading, 'Medical Conditions Claimed', the respondent relied upon following medical conditions: Alcohol - liver damaged Severe ulcers - stomach & gullet Complicated diverticular & polyps Depression Bi-lateral hernia - affecting groin. Alongside each of these five items, and under the heading 'Claimed as HOD' [Hurt on Duty], the respondent ticked the 'No' box in respect of each medical condition, and left the 'Yes' box vacant and not ticked. 13 The respondent referred in his application to his various treating doctors and indicated that reports of his conditions could be obtained from those practitioners. On the second page of the Application for Medical Discharge form, in a section of the form where the respondent was invited to set out the reasons, in his own words, why he could not continue to work as a police officer, Mr Hazlewood referred to a number of conditions including 'diverticular', 'polyps', 'stomach disorders', 'severe ulcers', alcohol-related problems, depression, alcohol related enlarging of the heart and spleen, 'damaged liver' and alcohol related short temper, aggression, hatred and lack of time for community members, particularly offenders. 14 On 7 September 1997, Dr Seletto, Police Medical Officer of the Police Service, examined Mr Hazlewood. Dr Seletto's report dated October 1997 contained, inter alia, the following matters: (a) Under the heading 'Conditions Claimed' Dr Seletto listed: 1. Alcohol damage to the liver. 2. Severe ulcers, stomach and gullet. 3. Complicated diverticular and polyps. 4. Depression. 5. Bi-lateral hernia - affecting groin. (These five conditions claimed were the same medical conditions as were claimed in the Application for Medical Discharge signed by Mr Hazlewood on 23 June 1997). (b) Under the heading 'Diagnosis/PM Opinion' Dr Seletto listed: 1. Alcohol abuse. 2. Diverticulitis. 3. Severe gastro-oesophageal reflux disease. 4. Symptoms of anxiety disorder and paranoid personality disorder. (c) Under the heading 'Available Medical Reports and Documentation' Dr Seletto listed: 1. Police Medical Officer notes and medical file. 2. Medical report by Dr Asawa dated 18 August 1997. 3. Medical report by Dr Kiringi, Cardiologist dated 2 March 1990. 4. Imaging and blood test results 1996 and 1990. 5. Medical report by Dr Kumar, Surgeon. 6. Report by Sergeant Hazlewood dated 28 July 1997 (sic). 7. No reports from Psychologist or Psychiatrist available. (d) Under the heading 'Background', Dr Seletto noted that in April 1997, Mr Hazlewood was diagnosed with a duodenal ulcer and severe ulcerated oesophagitis and added 'He requires long term medication and may need surgery in the future. He continues to be symptomatic.' Then Dr Seletto added: On my examination on 7 September 1997, he stated that he felt depressed, short tempered and angry and that he worried excessively. He has had disturbed sleep for years. He stated that he has lost patience with members of the community and especially with offenders. He felt that he may not be able to control his actions if he "does his block". He says that he "hates" some of the people he sees on the street. He said that he feels he can no longer cope with the stress of the police environment. He told me that he had not touched alcohol for 6 weeks and that he had felt better while he has been off work. (e) Under the heading 'Recommendation', Dr Seletto stated, 'I recommend that Sergeant Henry J Hazlewood be medically discharged from the NSW Police Service.' 15 On 27 January 1998, according to a letter from Ms Banning, Assistant Medical Discharge Coordinator, Workers Compensation and Review Section of the Police Service to the Secretary, Police Superannuation Advisory Committee ('PSAC') dated 25 September 2001, Mr Hazlewood was 'medically discharged under section 8(1) on the 27 January 1998'. PSAC is the delegated authority of STC in respect of Police Superannuation Scheme matters. Claim for hurt on duty

16 On 24 February 2001, Mr Hazlewood, in a letter to the Manager of STC, and headed 'Application by the abovementioned person for an increase in pension from 72.75% to 77% under Section 10B(2) and my Medical Discharge classified as HOD' refers to various matters which are to be found in the Medical Discharge papers, and having made reference to his 'post-traumatic syndrome', asks that the Manager read his Medical Discharge papers and place the application 'before the Board' and then advise of the decision. In particular, he refers to the medical histories and conclusions in the reports of Dr Seletto (Police Medical Officer), Dr Kiringi, Dr Kumar, Dr Asawa and Dr Lawson, all of these being matters which he identifies as being in 'my Medical Discharge papers'. 17 On 3 May 2001, Mr Hazlewood sent a similar letter to STC in support of his application under s 10B(2) and for his Medical Discharge to be classified as HOD, again referring to various pages from his Medical Discharge papers including the reports of Dr Kumar, Dr Asawa and Dr Lawson. 18 In the letter written by Ms Banning on 25 September 2001 referred to earlier, after referring to Mr Hazlewood's medical discharge and his claimed medical conditions (alcohol damage to liver, severe ulcers to stomach and gullet, complicated diverticular and polyps, depression and bilateral hernia affecting groin), and the support of the Police Medical Officer for the fact that Mr Hazlewood suffered from alcohol abuse, diverticulitis, severe gastro-oesophageal reflux disease, symptoms of anxiety disorder and paranoid personality disorder, it was stated in the letter that, '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.' Ms Banning makes the point that 'A thorough search of our records has failed to reveal any claim and/or notation on the former member's Medical file or HOD file in respect of a 'blood pressure or a post-traumatic syndrome' condition.' As to this last matter, it seems that Ms Banning was indicating that Mr Hazlewood had not notified the Commissioner of any injury in relation to a 'blood pressure or a post-traumatic syndrome' condition', notwithstanding the fact that she does not identify with any precision which injuries that it must have been accepted were notified by Mr Hazlewood in order for Ms Banning to indicate that: 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. 19 On 26 June 2003, Mr Hazlewood's Application for a Certificate under s 10B(2) of the PRS Act was considered by PSAC. PSAC certified in terms of s 10B(2) that Mr Hazlewood was incapable, due to the infirmities of 'alcohol dependence, depression, and paranoid personality traits' of discharging the duties of his office 'as at the date of your medical discharge on 5 February 1998'. PTSD was not among the accepted infirmities. The accepted infirmities seem to be derived from diagnoses of Dr M D McGrath, Consultant Psychiatrist, who saw Mr Hazlewood on 14 March 2002, and reported initially on 2 April 2002, with later reports on 10 July 2002 and 22 February 2008. By letter dated 27 June 2003, STC advised Mr Hazlewood of this, noting that he may wish to dispute the decision of PSAC, under s 67 of the Superannuation Administration Act 1996. 20 On 18 August 2005, Mr Hazlewood completed and signed an 'Application for Hurt on Duty pension by former Members of the Police Superannuation Scheme s10B(2)' to STC. The medical condition claimed to have caused incapacity for police duties was 'chronic post-traumatic stress disorder', with the date of injury for HOD purposes being said to be 5 February 1998. The Application stated that the s 10B(2) pension payment was being sought from 5 February 1998 on the basis that the condition and incapacity was present from that date. The reason for delay in making the Application was said to be 'Additional diagnosis'. The Application stated that on 5 February 1998 the medical condition/s that the respondent claimed, namely 'post-traumatic stress disorder', caused him to become incapacitated for his previous duties as a police officer on full duties on 5 February 1998, and explained that this date was nominated on the basis that it was the date of discharge for 'psychological condition'.

21 On 13 October 2006, the STC Disputes Committee, under s 67 of the Superannuation Administration Act determined as follows: 1. That Mr Hazlewood did not notify the Commissioner of Police in terms of s10B(2)(a) of the Police Regulation (Superannuation) Act 1906 before his retirement and within six months of receiving the injury which caused the claimed infirmity of mind, namely post-traumatic stress disorder, of that injury; 2. Additionally, and in the alternate, there is no sufficient basis to certify in terms of s10B(2)(b) that Mr Hazlewood was incapable from post-traumatic stress disorder of discharging the duties of his office at the time of his retirement. 22 To summarise the position: (1) On 23 June 1997, Mr Hazlewood made application for a medical discharge. The conditions he claimed were the cause of his permanent incapacity were: Alcohol - liver damaged Severe ulcers - stomach & gullet Complicated diverticular & polyps Depression Bi-lateral hernia - affecting groin. In respect of each of these conditions, Mr Hazlewood indicated that he was not claiming Hurt on Duty. (2) In his application, Mr Hazlewood appears to have indicated that his depression was caused by alcohol and that his 'short temper, aggression and hate for members of the community particularly offenders against the law' were all 'alcohol related'. (3) On 7 September 1997, Dr Seletto recommended that Mr Hazlewood be discharged from the Police Service. Dr Seletto's diagnosis was: 1. Alcohol abuse. 2. Diverticulitis. 3. Severe gastro-oesophageal reflux disease. 4. Symptoms of anxiety disorder and paranoid personality disorder. (4) On 27 January 1998, according to a letter from Ms Banning, dated 25 September 2001, Mr Hazlewood was 'medically discharged under Section 8(1) on the 27 January 1998'. (5) On 24 February 2001, Mr Hazlewood in a letter to the Manager of STC, and headed 'Application by the abovementioned person for an increase in pension from 72.75% to 77% under Section 10B(2) and my Medical Discharge classified as HOD' refers to various matters which are to be found in the Medical Discharge papers, and having made reference to his 'post-traumatic syndrome', asks that the manager read his Medical Discharge papers and place the application "before the Board" and then advise of the decision. (6) On 3 May 2001, Mr Hazlewood sent a similar letter to STC in support of his application under s 10B(2) and for his Medical Discharge to be classified as HOD, again referring to various pages from his Medical Discharge papers. (7) On 25 September 2001, Ms Banning sent a letter to the PSAC noting that Mr Hazlewood claimed conditions of alcohol damage to liver, severe ulcers to stomach and gullet, complicated diverticular and polyps, depression and bilateral hernia affecting groin, and the PMO supported alcohol abuse, diverticulitis, severe gastro-oesophageal reflux disease, symptoms of anxiety disorder and paranoid personality disorder. The letter also stated '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.' Ms Banning makes the point that 'A thorough search of our records has failed to reveal any claim and/or notation on the former member's Medical file or HOD file in respect of a 'blood pressure or a post-traumatic syndrome' condition.' (8) On 26 June 2003, PSAC certified in terms of s 10B(2) of the PRS Act that Mr Hazlewood was incapable, due to the infirmities of 'alcohol dependence, depression, and paranoid personality traits' of discharging the duties of his office 'as at the date of your medical discharge on 5 February 1998'. (9) On 18 August 2005, Mr Hazlewood completed and signed an 'Application for Hurt on Duty pension by former Members of the Police Superannuation Scheme s10B(2)' to STC. The medical condition claimed to cause incapacity for police duties was 'chronic post-traumatic stress disorder', with the date of injury for HOD purposes being said to be 5 February 1998. (10) On 13 October 2006 the STC Disputes Committee, determined as follows: 1. That Mr Hazlewood did not notify the Commissioner of Police in terms of s10B(2)(a) of the Police Regulation (Superannuation) Act 1906 before his retirement and within six months of receiving the injury which caused the claimed infirmity of mind, namely post-traumatic stress disorder, of that injury; 2. Additionally, and in the alternate, there is no sufficient basis to certify in terms of s10B(2)(b) that Mr Hazlewood was incapable from post-traumatic stress disorder of discharging the duties of his office at the time of his retirement. Notification of injury

23 It is to be accepted that at the time of his discharge in 1998, based on medical opinion, Mr Hazlewood suffered infirmities including alcohol dependence, depression and paranoid personality traits such that he was incapable of performing his duties. This is confirmed by the fact that on 26 June 2003, PSAC certified in terms of s 10B(2) that Mr Hazlewood was incapable, due to the infirmities of 'alcohol dependence, depression and paranoid personality traits' of discharging the duties of his office 'as at the date of your medical discharge on 5 February 1998'. 24 In order to certify that the respondent was incapable, due to the 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, PSAC was required to have been satisfied in accordance with s 10B(2)(a) that Mr Hazlewood had notified the Commissioner of Police before he had obtained his medical discharge and within 6 months of receiving an injury that caused his infirmity, of that injury. 25 In Ms Banning's letter of 25 September 2001 the author refers to 'conditions' that the respondent claimed were suffered by him, including ulcers, diverticulitis, liver damage caused by alcohol and polyps. These were the conditions nominated by Mr Hazlewood in applying for medical discharge in 1997. Ms Banning also referred to the Police Medical Officer's support for alcohol abuse, diverticulitis, severe gastro-oesophageal reflux disease, symptoms of anxiety disorder and paranoid personality disorder. 26 It is apparent from Ms Banning's letter of 25 September 2001 that the Police Commissioner had accepted, on the basis of the 'conditions' relied upon by the respondent in his 1997 application for medical discharge, that he had been notified of an injury in accordance with s 10B(2)(a) and that PSAC accepted at face value that notification had been given. Otherwise, PSAC could not have certified incapacity caused by 'alcohol dependence, depression, and paranoid personality traits'. 27 The position adopted by the appellant in the proceedings was that, having been advised by the Police Service, through Ms Banning's letter of 25 September 2001, that the Service had accepted that Mr Hazlewood had complied with the provisions of the Act 'in that he applied prior to his Medical Discharge and within six months of the condition occurring', this was sufficient indication that the Police Commissioner had been notified of the injury that the respondent claimed caused his infirmities of 'alcohol dependence, depression, and paranoid personality traits'. In other words, it was not the appellant's responsibility to go behind the Commissioner's advice regarding notification. 28 Having accepted, on the face of the advice in Ms Banning's letter, there had been notification under s 10B(2)(a) of an injury causing the infirmities of 'alcohol dependence, depression and paranoid personality traits', the appellant, nevertheless, denied there had been notification of the injury which caused post-traumatic stress disorder. This denial also appears to have been based on Ms Banning's letter where the author said: A thorough search of our records has failed to reveal any claim and/or notation on the former member's Medical file or HOD file in respect of a 'blood pressure or a post-traumatic syndrome' condition. 29 There was no claim for PTSD in 1997 because although Mr Hazlewood knew of the condition, he did not understand he was suffering from it at the time he applied for discharge and the condition was not diagnosed at the time. Marks J, however, found that at the time of his discharge from the police service, the respondent was suffering from PTSD. This was a finding not challenged by the appellant on appeal. 30 It is, therefore, established for the purposes of this appeal that at the time of his discharge Mr Hazlewood was suffering from PTSD, alcohol dependence, depression and paranoid personality traits. 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 as it had been advised 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 had 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 manifested 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; (2004) 131 IR 243 at [54] - [57]. STC is obliged to accept the advice of the Commissioner on its face regarding notification. 34 It is unsurprising, given the unfairness, that the trial judge sought to resort to the 'compromise' power under s 66 of the PRS Act. For the reasons expressed by Staff J, however, I agree that s 66 is not available in the circumstances of this case and that Marks J erred in relying on s 66. 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) 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 an 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 what I have said in this judgment. 36 I find that Marks J erred in finding that there had been notification of an injury within the meaning of s 10B(2)(a) of the PRS Act. Whether a traumatic stressor could constitute an injury

37 One of the grounds of appeal was that his Honour erred in his construction of s 10B(2) in finding that a 'traumatic stressor' could constitute an 'injury' in the absence of the proximate manifestation of symptoms. Marks J found at [86]: [86] Indeed, the description of PTSD contained within the manual is, in my opinion, sufficient to point to what is necessary by way of causation and assists in identifying what is an "injury" for the purpose of s 10B(2)(a). The opening words of the manual, in describing the "diagnostic features" of PTSD are to the following effect: "The essential feature of Posttraumatic Stress Disorder is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one's physical integrity; or witnessing an event that involves death, injury or a threat to the physical integrity of another person…" (At 424). These words at face value require merely a temporal nexus between the development of the characteristic symptoms and the exposure to the stressor. However, the remainder of the description of the diagnostic features makes it clear that the manner of the response must result from the exposure to the extreme trauma and that the characteristic symptoms must in turn result from that exposure. Accordingly, the process by which the condition manifests itself involves both a temporal and causal nexus between the traumatic stressor and the manifestation of the symptoms. As I have previously observed, it is the manifestation of the symptoms that constitutes the presence of the disorder. It does not seem to me appropriate in these circumstances to characterise the manifestation of the symptoms as constituting the injury, as submitted by the respondent. It seems to me to be more consistent with the policy of the sub-section that the traumatic stressor events be regarded as the injuries that caused the infirmity of mind, namely the PTSD. 38 His Honour also found at [87]-[88]: [87] This would therefore require the appellant to have notified the Commissioner of Police before his retirement and within six months of each of the traumatic stressors which he described.

[88] There can be no doubt that the appellant informed the Commissioner of Police of each of these events by reason of the preparation of relevant reports and the like. It is incomprehensible that the appellant would not have been required to produce documents recording his involvement in the three deaths which have been described and in the other serious matters which he related to the various medical practitioners in the course of giving his history to them. Indeed, so much was conceded by the respondent for the purpose of these proceedings. The information would have been contained within occurrence pad records and other documents which the appellant was required to submit. I am satisfied, therefore, that within six months of each of these events the appellant notified the Commissioner of Police of them and that this occurred before his retirement. 39 It follows from what Marks J found that if a traumatic stressor event may be regarded as an injury for the purposes of s 10B(2)(a), it is arguable that the Commissioner was notified by Mr Hazlewood of an injury that caused his PTSD. 40 Dr Anderson's evidence, accepted as it was by Marks J, was clearly to the effect that Mr Hazlewood's PTSD was caused by his gruesome experiences in the police force. These included being a witness to or being involved in the investigation of murders, suicides, a decapitation, fatal motor vehicle accidents, stabbings, assaults and being shot at. These were, as Dr Anderson described them, traumatic experiences for Mr Hazlewood that caused PTSD, alcohol dependence and depression. Dr Anderson also said that any signs of paranoia in Mr Hazlewood were symptoms of a post traumatic state. 41 An injury is defined in the 2003 online edition of the Macquarie Dictionary as 'harm of any kind done or sustained'. 'Traumatic' is defined as 'relating to or produced by a trauma or wound'. 'Trauma' is relevantly defined as 'Psychology a startling experience which has a lasting effect on mental life; a shock.' The online second edition (1989) of the Oxford English Dictionary relevantly defines trauma as: Psychoanalysis and Psychiatry . A psychic injury, esp. one caused by emotional shock the memory of which is repressed and remains unhealed; an internal injury, esp. to the brain, which may result in a behavioural disorder of organic origin. Also, the state or condition so caused.

'Injury' in the Oxford English Dictionary is relevantly defined as 'Hurt or loss caused to or sustained by a person or thing; harm, detriment, damage.' 42 In my opinion, on the evidence before Marks J, Mr Hazlewood's experiences in the police force were traumatic; they produced trauma, that is, a psychic injury such as depression or PTSD. Depression was accepted by the Commissioner, and in turn by STC, as having been notified as an injury. However, the finding by Marks J that traumatic stressor events be regarded as injuries for the purpose of s 10B(2) cannot be sustained. It does not necessarily follow that a person exposed to a traumatic stressor event will suffer trauma in the form of a psychic injury. 43 In other words, although Mr Hazlewood was exposed to traumatic stressor events and as a consequence suffered psychic injuries including PTSD, he failed to recognise, or have diagnosed, that injury and therefore failed to notify it to the Police Commissioner. Unfairly, I consider, he is now deprived of being provided with the opportunity of having STC certify his incapacity caused by PTSD. However, simply because a police officer is exposed to a traumatic stressor event cannot, of itself, be regarded as an injury unless it can be demonstrated the event resulted in actual injury, usually of a psychic nature. Otherwise, police officers who, because of the nature of their work, regularly witness traumatic stressor events, would be regarded as suffering an injury each time such an event occurred. 44 I consider Marks J erred in finding that traumatic stressor events be regarded as the injuries. Form of notification of injury

45 As to the issue about whether there was compliance with s 10B(2)(a1) in that the notification of injury under s 10B(2)(a) 'shall be in or to the effect of' a form contained in Schedule 3 to the Police Superannuation Regulation 1984, Staff J found that the Schedule remained in force in accordance with the identified savings and transitional provisions that applied after the repeal of the Regulation. 46 The appellant conceded that strict compliance with the form was not required: s 80 of the Interpretation Act 1987. All that is required is substantial compliance. 47 There was no compliance with Schedule 3 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 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) Ltd [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 injuries causing one set of infirmities and, on the other hand, deny notification was not in the proper form in respect of any injury causing PTSD. Orders

48 I would make the following orders: (1) Leave to appeal is granted. (2) The appeal is upheld. (3) The decision of Marks J that Mr Hazlewood was successful in his appeal pursuant to s 88 of the Superannuation Administration Act 1996 is quashed. (4) Costs are reserved. (5) Any submissions by the appellant on costs shall be filed within 14 days. The respondent will have a further 14 days to file submissions on costs and unless either party applies to be heard on costs, the Full Bench will determine any issues on the papers. JUDGMENT OF THE VICE-PRESIDENT

49 I have had the opportunity to read the draft judgments of Boland J, President, and Staff J in this matter. 50 I agree with the orders proposed by their Honours and their reasons as to why leave to appeal should be granted and the appeal upheld on the ground that the respondent had failed to meet the requirements for notice in s 10B(2)(a) of the Police Regulation (Superannuation) Act 1906. 51 I would propose to make one brief observation. 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.

52 SAS Trustee Corporation ('STC' or 'the appellant') seeks leave to appeal and appeal against a judgment of Marks J, in which his Honour found that the respondent, Henry Hazlewood, a former police officer, was incapable due to infirmity of mind constituted by post traumatic stress disorder ('PTSD'), from exercising the functions of a police officer on 5 February 1998, being the date of his medical discharge from the New South Wales Police Force: Hazlewood v SAS Trustee Corporation [2008] NSWIRComm 215. 53 At the time of his medical discharge, the respondent did not claim that any of his specified incapacitating medical conditions of alcohol dependence, depression and paranoid personality traits were caused by his police duties. Accordingly, his claimed infirmities were certified pursuant to s 8 (allowance payable except where member hurt on duty) of the Police Regulation (Superannuation) Act 1906 ('the Act') and his annual superannuation allowance entitlement (72.75 per cent of salary) was paid pursuant to s 7 of the Act. 54 The annual superannuation allowance payable for non hurt on duty infirmities is potentially less generous than that payable for hurt on duty infirmities. Pursuant to s 10 of the Act, there is potential for an increase in benefits of up to 100 per cent of the former salary of office, subject to certification that the infirmity was caused by police duties. 55 In 2001, the respondent applied to the appellant to have the various medical conditions referred to above, certified under s 10B(2) of the Act. The construction of this subsection of the Act, which deals with the pre-conditions to be satisfied in order for a former member of the police force who resigned or retired to receive an annual superannuation allowance or gratuity, is central to the outcome of this appeal. If successful, the respondent's annual superannuation allowance would have increased. 56 On 26 June 2003, the appellant duly certified the respondent as suffering from the infirmities of alcohol dependence, depression and paranoid personality traits pursuant to s 10B(2) of the Act. The Commissioner of Police then had a duty under the Act to decide whether the infirmities certified by the appellant under s 10B of the Act were caused by his police duties (hurt on duty) and to give the member written notification of the decision (s 10B(3) of the Act). The Commissioner of Police determined on 12 August 2003 that the abovementioned infirmities were not hurt on duty infirmities and the respondent has appealed that decision to the District Court (s 21(1)(b) of the Act). That appeal is currently pending. 57 On 18 August 2005, the respondent applied for the condition of 'chronic PTSD' to be added to the s 10B(2) certificate issued on 26 June 2003. The appellant rejected this application and determined a dispute under s 67 of the Superannuation Administration Act 1996 ('the SA Act') on the grounds that, first, the respondent had not complied with the 'notice' requirement prescribed by s 10B(2)(a) of the Act and, secondly (assuming that he did satisfy the notice requirement), the claimed additional condition was not causative of the respondent's inability to discharge his duties of office at the time of his medical discharge. The respondent appealed that decision pursuant to s 88 of the SA Act which provides: 88 Appeals (1) A person aggrieved by a determination of STC or an STC disputes committee under section 67 (relating to determination of disputes) may appeal against the determination to the Industrial Relations Commission in Court Session (the Commission).

(2) The appeal must be made within 6 months after the appellant is notified of the determination or within such further period as the Commission allows.

(3) In dealing with the appeal, the Commission may exercise any function that could have been exercised by STC or the STC disputes committee, as the case may be, in making the determination the subject of the appeal.

(4) In dealing with the appeal, the Commission is to have regard to this Act and any other relevant provisions regulating the superannuation scheme concerned and such other matters as it considers to be relevant.

(5) In dealing with the appeal, the Commission is not bound by the rules of evidence and may inform itself in any manner it thinks fit.

(6) The final determination made by the Commission on the appeal is to be given effect to as if it were a determination of STC. 58 It is from the determination of the respondent's appeal by Marks J that the appellant now appeals. 59 The principal issue for determination in this appeal is whether his Honour's decision upholding a claim by the respondent that he was entitled to a superannuation benefit, which was based on a claim by the respondent that he was suffering from a condition of PTSD at the time of his discharge from the police force, was correct. This issue should be resolved in the negative. 60 Although his Honour found that there had been a technical non-compliance with the requirement of s 10B(2) of the Act in that the respondent had failed to notify the Commissioner of Police of the injury causing PTSD prior to his retirement and within six months of the injury, his Honour held that the claim should be allowed, as it was consistent with the fiduciary obligations of the appellant and that it was, therefore, appropriate to utilise the power of 'compromise', which is contained within s 66 of the SA Act. There is an important point of statutory construction involved as to whether it was appropriate to use s 66 of the SA Act, or whether it was beyond power. In respect of this issue, in my view, his Honour's reliance on s 66 of the SA Act was an error of law. 61 The submissions on both sides acknowledged that the starting point is the proper interpretation of s 10B(2) of the Act. It is, therefore, necessary to firstly set out the statutory framework in which superannuation benefits are payable to police officers and how an entitlement to superannuation benefits may be established. The statutory framework

62 The Police Superannuation Scheme ("PSS"), which was established and is governed by the Act, is one of a number of superannuation funds involving government employees administered by the appellant. The fund is under the control of STC (formerly known as the State Authorities Superannuation Board), which is the appellant in these proceedings. Its general functions and duties are prescribed by the SA Act. Various circumstances that give rise to the payment of an annual superannuation allowance are set out in the Act. Section 10 of the Act defines 'disabled member of the police force'. Section 10B of the Act provides for the medical examination of a disabled member and the determination of whether a member is hurt on duty. Section 10B of the Act, at the relevant time of the respondent's application, was as follows: Medical examination of disabled member and determination of whether hurt on duty 10B. (1) An annual superannuation allowance shall not be granted under section 10 to a member of the police force who is discharged unless the Board (having regard to medical advice on the condition and fitness for employment of the member) has certified the member to be incapable, from a specified infirmity of body or mind, of personally discharging the duties of his office. (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 that injury; (a1) where the regulations so require, the notification was in or to the effect of the prescribed form; and (b) the Board (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 the duties of his office at the time of his resignation or retirement. (2A) The Board may certify that a member of the police force is incapable of discharging the duties of the member's office only if the member is incapable of discharging the duties of the office in the police force in which the member is then employed and also any other office in the police: (a) which is available to the member; (b) which is not lower in rank than the office in which the member is then employed; and (c) in which it would be reasonable to expect the member to be employed (2B) The Board may certify that a former member of the police force would have been incapable of discharging the duties of the member's office if the member would have been incapable of discharging the duties of office in the police force in which the member was employed at the time of the member's resignation or retirement and also any other office in the police force: (a) which was available to the member at that time; (b) which was not lower in rank than the office in which the member was then employed; and (c) in which it would have been reasonable to expect the member to have been employed. (2C) In this section: "medical advice" means the advice of: (a) 2 members of the Police Medical Board; or (b) any one or more medical practitioners nominated by the State Authorities Superannuation Board. (3) 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 or the former member having been hurt on duty when he was a member of the police force, as the case may be; and (b) give the member or former member written notification of the decision." 63 Section 51 of the SA Act makes specific provision for the duties of the appellant in connection with the administration of the various superannuation schemes which are entrusted to it. Section 66 of the SA Act enables the appellant to compromise or settle claims. Section 51 and s 66 are in the following terms: 51 Duties relating to functions (1) STC must: (a) act honestly in all matters relating to its functions relating to the STC schemes, and

(b) exercise, in relation to all matters affecting the STC schemes, the same degree of care, skill and diligence as an ordinary prudent person would exercise in dealing with property of another for whom the person felt morally bound to provide, and

(c) ensure that its functions relating to the STC schemes are exercised in the best interests of persons entitled to receive benefits under the STC schemes, and

(d) not enter into any contract or arrangement, or do anything else, that would prevent STC from, or hinder STC in, properly exercising STC's functions as a trustee. Note. The duties contained in subsection (1) reflect the covenants required of superannuation scheme trustees under the Superannuation Industry (Supervision) Act 1993 of the Commonwealth.

(2) In exercising its functions, STC must have regard to: (a) the interests of persons entitled to receive benefits under the STC schemes, and

(b) the Heads of Government Agreement, commencing 1 July 1996, relating to the exemption of certain State public sector superannuation schemes from the Superannuation Industry (Supervision) Act 1993 of the Commonwealth, and

(d) any statement in writing of the policy of the Government on any matter that is relevant to the functions of STC given by the Minister to STC. (3) Subsection (1) (d) does not prevent STC from entering into a contract or an arrangement under section 53.

66 STC may compromise or settle claims (1) STC may compromise or otherwise settle any claim made against it. (2) If STC compromises or otherwise settles a claim in relation to a benefit, the compromise or settlement discharges STC's obligations as regards the benefit, and the amount payable is to be regarded as a benefit under the STC scheme concerned and is payable from the appropriate STC fund accordingly. (3) To the extent that an amount payable by STC following a compromise or settlement is not a benefit under the relevant STC scheme, the amount is payable from whichever fund or funds that STC considers appropriate. (4) STC may make such inquiries and investigations with respect to a claim made against it as it thinks fit. 64 For present purposes, it is only necessary to refer to the circumstances in which a superannuation allowance is payable to a former member of the police force who resigned or retired. Judgment at first instance

65 His Honour summarised the background at [1] - [2] as follows: [1] This is a superannuation appeal instituted by the appellant, Henry Hazlewood, against the respondent, SAS Trustee Corporation. Mr Hazlewood was formerly a member of the New South Wales Police Force having joined in 1967. He was medically discharged on 5 February 1998, suffering from a number of medical conditions. He became entitled to a superannuation pension. The entitlement to that pension arose under the Police Regulation (Superannuation) Act 1906. Pursuant to the provisions of s 10B(2) of that Act, the appellant was certified as being incapable of discharging the duties of his office as at 5 February 1998 due to a number of specified conditions including: "alcohol dependence, depression and paranoid personality traits." Dependence on certain benefits was also conditional upon the Commissioner of Police determining that the conditions from which the appellant was suffering were caused by the appellant being hurt on duty when he was a member of the police force. The Commissioner of Police determined that none of the specified conditions was a "hurt on duty" condition. [2] Subsequently on 18 August 2005, the appellant applied for an invalidity benefit under the Police Superannuation Scheme on a "hurt on duty" classification based on a medical condition which he nominated as "chronic post traumatic stress disorder." ("PTSD"). By letter dated 18 October 2006, this application was denied. It was ultimately determined by the Disputes Committee of State Super, the respondent in these proceedings. The determination was to the following effect: 1. That Mr Hazlewood did not notify the Commissioner of Police in terms of s 10B(2)(a) of the Police Regulation (Superannuation) Act 1906 before his retirement and within 6 months of receiving the injury which caused the claimed infirmity of mind, namely post traumatic stress disorder, of that injury;

Additionally, and in the alternative, there is no sufficient basis to certify in terms of s 10B(2)(b) that Mr Hazlewood was incapable from post-traumatic stress disorder of discharging the duties of his office at the time of his retirement. 66 His Honour set out a detailed account of the respondent's work as a police officer, drawing much of the material from an amended statement of claim issued by the respondent in the District Court of New South Wales against the Commissioner of Police in which the respondent is seeking orders in the nature of declaratory relief to the effect that the infirmities of alcohol dependence, depression and paranoid personality traits should be characterised as having been caused whilst 'hurt on duty'. 67 His Honour embarked upon a detailed examination of the respondent's medical history, including setting out what his Honour said was the accepted diagnostic criteria for diagnosing PTSD. Subsequently, his Honour undertook an extensive examination of evidence given in reports by four psychiatrists, two of whom gave oral evidence. This led his Honour to make a finding that the respondent suffered PTSD: [65] My understanding of the totality of the medical evidence to which I have referred including oral evidence of Drs McGrath and Anderson leads me to conclude that it is more appropriate in all the circumstances to accept the opinion of Dr Anderson over that of Dr McGrath. This is because I am persuaded that Dr Anderson directed his mind independently to ascertaining whether a diagnosis of PTSD was appropriate and sought the relevant information to determine whether or not such a diagnosis could be made. To be fair to Dr McGrath, it was not until February 2008 that he appears to have been directed for the first time to consider whether the appellant suffered from that disorder. The circumstances in which Dr McGrath first treated the appellant in 1994 and subsequently examined him in 2002 would not have caused Dr McGrath to look specifically for any such diagnosis. At that stage, it had been accepted that the appellant was suffering from symptoms of depression, anxiety disorder and paranoid personality disorder and all that Dr McGrath was asked to do was to consider whether the appellant was incapacitated for all forms of work as a result. In these circumstances it is, in my opinion, safer and, as I have said, more appropriate to accept the opinion of Dr Anderson. [66] It is interesting to note that Dr McGrath in his report of 10 July 2002 said that the symptoms of depression, anxiety disorder and paranoid personality disorder "are probably all interrelated with his alcohol dependency." The prevailing medical evidence is to the effect that the appellant was driven to drink in order to deal with the effects of the traumatic events to which he was exposed as a police officer (and about which there can be no doubt) in the absence of any empathy or support mechanisms which would assist him in dealing with the impact of those traumatic events. I acknowledge that the police force did refer the appellant for treatment of his alcoholism, but that may have been too little too late. It is hard to see in the circumstances how it can be denied that the appellant's problems, no matter what diagnosis is given to them by way of a label, are causally associated with the work that he performed in the New South Wales Police Force. [67] As Drs McGrath and Anderson readily conceded, a diagnosis of psychiatric conditions is something that cannot be ascertained by use of diagnostic procedures available to other medical practitioners. It is a question of obtaining and dealing with such information as is available and formulating an opinion, probably in an impressionistic manner, based on the nature of and characteristics of the complaints as they may be recognised in terms of symptomatology. This is a process that is not the subject of any precise scientific formulation, and the matter needs to be approached, in my opinion, accordingly. [68] In the result, I accept the opinion of Dr Anderson that, at the time of his discharge from the police service, the appellant was suffering from PTSD. I also accept the opinion of Dr Anderson as to the causal relationship of that condition with the appellant's service in the New South Wales Police Force. [69] Of course, in coming to this conclusion I readily acknowledge that no medical practitioner, including Dr Anderson, has been able to state categorically that any one or more of the incidents described by the appellant was the one trigger or constituted one of several triggers or was the final trigger for the manifestation of the constellation of symptoms which constituted the disorder. I have proceeded, however, on the basis that it is only sufficient to deal with them in the aggregate, based on the evidence of Dr Anderson. [70] I should make some comment about my understanding of the appellant's alcoholism and excessive alcohol abuse based upon the medical evidence. The preponderance of the medical evidence is to the effect that the appellant, consistent with the then prevailing culture in the police force, resorted to drinking alcohol as a means of assisting in dealing with the traumatic events which occurred during his police work and of ameliorating the effects of those traumatic events. All of the medical practitioners seemed to agree with this explanation. All of them, save for Dr Akkerman, accept that there was a nexus between the appellant's alcoholism and his police work. Dr Akkerman was of the opinion that the appellant's alcoholism was "constitutional" which I assume refers to some predisposition to dependence on alcohol, but ignores that which, on the evidence, led the appellant to drink. Relevantly, for the purpose of these proceedings, I do not regard the appellant's alcoholism and his long history of alcohol abuse as detracting in any way from the conclusions to which I have come concerning the diagnosis of PTSD and the causal factors which I have previously identified. 68 His Honour considered whether or not PTSD is an infirmity of the mind, concluding that the appellant suffered from the infirmity of PTSD at the time of his discharge from the police force. His Honour then turned to consider whether or not the appellant notified the Commissioner of Police before his medical retirement that he had suffered an injury which caused the infirmity of PTSD and whether such notification occurred within six months of that injury as is required by s 10B(2)(a) of the Act. His Honour concluded that the respondent was technically unable to comply with this provision. 69 His Honour proceeded to consider the provisions of s 66 of the SA Act, which provides that the appellant may compromise or otherwise settle any claim made against it. His Honour concluded at [114] - [115] that it was appropriate to utilise the power of compromise stating: [114] Consistent with the fiduciary duties and obligations which repose in STC and which I am required to exercise in determining these proceedings, I am of the opinion that it is appropriate to utilise the power of compromise which is contained within s 66 of the Superannuation Administration Act . I do so for the following reasons: 1. The provisions of s 10B require, on analysis, the identification of an injury that causes an infirmity of mind. These are concepts that do not sit easily with an "infirmity of mind", which expression is itself shrouded in uncertainty. No doubt certain psychiatric conditions are well recognised within the community such as depression and bipolar disorder. However, medical science has not as yet reached a stage where anyone can say with confidence that in all cases such conditions have been caused by an "injury", whatever that word is intended to convey in the context of an infirmity of the mind. Whilst it might be said that some cases of depression have been initiated by exposure to certain experiences or conditions, there are other cases where depression arises seemingly spontaneously without any particular incident or experience having occurred. Such depression is known as endogenous depression. In the same way, if it could be said that alcoholism or drug addiction constitute an infirmity of the mind, there must also be cases where it is impossible to identify an "injury" as having caused those particular conditions.

2. This difficulty in identifying what is an "injury" in a conceptual sense applies also to the circumstances of the appellant and the PTSD from which he suffers. I have already discussed the necessity for the particular event or occurrence to act as a stressor. However, as I have observed, it is difficult, if not impossible, to identify any one particular incident as necessarily being or constituting the cause of the PTSD from which the appellant suffers. The truth is that the aggregation of these events and occurrences over a period of time has caused, in the sense of brought about, the PTSD suffered by the appellant.

I have concluded that the Commissioner of Police must have been notified of each of the events or occurrences but it would have been impossible for the appellant to have had sufficient, or any, insight to enable him to notify the Commissioner that there was either an actual or potential impact on his psyche which would have contributed to the cumulative effect of producing, over a period of time, his PTSD.

In the circumstances, the requirement imposed by s 10B(2) is essentially an inappropriate one by reference to the appellant's condition.

Furthermore, the position is complicated because, as I have described, there are different regimes applying because of amendments to the Police Regulation (Superannuation) Act and amendments made to the Regulations. These amendments have arisen during the period when the appellant was employed by the New South Wales Police Force and encountered the events and occurrences that ultimately caused the PTSD.

The result is that although the appellant qualifies in my opinion for the grant of a superannuation allowance having regard to the provisions of s 10B(1), he is technically unable to comply throughout the whole of the period with the provisions of sub-s (2), although he has complied with respect to some of the events and occurrences which have occurred during this period depending upon the particular regime that has operated from time to time by reason of the amendments to the Act and the Regulations.

Notwithstanding this technical non-compliance, there can be no doubt that the Commissioner of Police was aware of all of the events and occurrences encountered by the appellant during the totality of the period of his employment. [115] For these reasons, it is appropriate that such discretion as is created by s 66 of the Superannuation Administration Act should be exercised in favour of the appellant. To decline to do so would, in my opinion, result in the appellant being disentitled to a superannuation allowance in circumstances that would be unfair and unjust. The conclusion that I have reached is, in my opinion, consistent with the philosophy and intent of the entitlement to benefits created by the Police Regulation (Superannuation) Act and the fiduciary environment in which benefits are determined. 70 His Honour's conclusions were stated at [116] - [117] as follows: [116] On the basis of the opinion of Dr Anderson I am satisfied that the appellant was incapable from the infirmity of mind constituted by PTSD of personally exercising the functions of a police officer referred to in s 14(1) of the Police Act 1990 at the date of his discharge from the police force.

[117] In certifying the appellant to be incapable from the infirmity of mind of PTSD of personally exercising the functions of a police officer referred to in s 14(1) of the Police Act 1990, I have relied upon the medical advice provided by Dr Anderson. In so nominating Dr Anderson, I am mindful of the requirement to have regard to medical advice contained within s 10B(1) and (2) and to the definition of medical advice contained within s 10B(2C). Grounds of appeal

71 The grounds of appeal were as follows: 1. His Honour erred in his construction of s 10B(2) Police Regulation (Superannuation) Act in finding that: (i) a "traumatic stressor" could constitute an "injury" in the absence of the proximate manifestation of symptoms; (ii) the "notification" requirement did not require full or sufficient compliance; (iii) it was inappropriate to apply the notice requirement to the respondent's condition; (iv) the appellant had a discretion to ignore the notice requirement. 2. His Honour's conclusion of "part compliance" with the notice requirement was contrary to his actual findings. 3. His Honour failed to address the evidence and submissions made concerning exhibit D (advice from Commissioner of Police concerning notice). 4. His Honour erred in his application of s 66 Superannuation Administration Act 1996 to the present matter as there was no question of "compromise" involved regarding the question of whether the respondent had satisfied the statutory requirement of "notice" to the Commission of Police. Leave to appeal

72 Mr T Ower of counsel, who appeared for the appellant, submitted that leave to appeal should be granted, essentially because this appeal involved the proper interpretation and application of s 10B(2) of the Act. Counsel observed that the type of infirmity claimed by the respondent was one that was common to police officers given the nature of their work. Accordingly, the questions to be determined in the present appeal were of great importance to the future administration of the Police Superannuation Scheme. Appellate guidance on the question of the 'notice' requirement contained in s 10B(2)(a) of the Act within the context of PTSD, was submitted to be invaluable. 73 Counsel further submitted that s 66 of the SA Act, which was applied by his Honour to overcome the respondent's technical failure to comply with the requirements of the Act governing the PSS, was generally applicable to all of the appellant's schemes. The appellant contended that s 66 could not be used to determine an application contrary to a statutory pre-requisite. Either the statutory requirement was satisfied, or it was not. His Honour's approach would require the appellant to consider using its powers of compromise whenever it was faced with a defective application involving any of the appellant's schemes. Such an approach, it was submitted, had far-reaching consequences for all of the appellant's schemes, and therefore, was an important question of public interest, for which leave should be granted. In my view, these circumstances justify the grant of leave to appeal. Section 10B of the Police Regulation (Superannuation) Act 1906

74 The terms and structure of s 10B of the Act were considered by Wright J in Commissioner of Police v SAS Trustee Corporation [2002] NSWIRComm 31; (2004) 131 IR 243 at [54] - [57]. His Honour found that the appropriate construction was that the legislature had determined the function of making the decision in the public interest and that in the interest of the fund under s 10B(1) or, under s 10B(2) of the Act, was that of the appellant. It also had the function of issuing the relevant certificate. In doing so, the appellant was obliged to have regard to medical advice. The certificate having been issued, it was then the role not of the appellant, but of the Commissioner of Police to make the decision as to whether the infirmity the subject of the certificate, was caused by the police officer, or former police officer, being hurt on duty and also to make a subsidiary determination such as to the date or dates when that occurred, if relevant. There was clearly a demarcation or division of function under s 10B of the Act as between the appellant and the Commissioner of Police in respect of the question of "hurt on duty". It was the Commissioner of Police who not only had the primary responsibility, but also the responsibility as to whether a particular infirmity has been caused in a hurt on duty situation. However, the legislature had not allocated or given to the Commissioner of Police the role or responsibility of dealing with the question of the certification, having regard to medical advice, in terms of the matters to be determined under s 10B(1) or 10B(2) of the Act. His Honour's observations were subsequently confirmed on appeal: Commissioner of Police v SAS Trustee Corporation and another [2002] NSWIRComm 382. 75 An annual superannuation allowance may be granted to a member of the Police Force who resigned and who, according to a certificate given pursuant to s 10B(2) of the Act at any time after resignation, 'would have been incapable, from an infirmity of body or mind of discharging the duties of a member's office at the time of the member's resignation'. 76 In order to qualify for the granting of an annual superannuation allowance, the former member of the police service who has resigned, must satisfy the requirements of s 10B(2)(a) and s 10B(2)(b) of the Act, the terms of which I have set out earlier. A critical issue in this appeal is whether the respondent met the first condition found in s 10B(2)(a) of the Act and notified the Commissioner of Police within six months of receiving his injury, which caused his infirmity of mind, of that injury. 77 Pursuant to an amendment to the Police Superannuation Regulation 1984 ("the 1984 Regulations"), from 23 November 1984 a form was prescribed for the purpose of s 10B of the Act. Prior to that date, s 10B of the Act required the notification of 'the nature of that injury'. There was no prescribed form prior to 1984. Pursuant to cl 6 of the 1984 Regulations it was provided that a notification of injury under s 10B(2)(a) of the Act 'shall be in or to the effect of' a form contained in Schedule 3 of the Regulations. I observe that there was no entitlement to the benefit claimed by the respondent prior to 1979. Between 1979 and 1984, s 10B(2)(a) of the Act required the notification of 'the nature of that injury' only. 78 The Schedule 3 form commenced with the following: Form to be used for notification of injury. Report of injury received whilst on duty, whilst travelling to or from duty, or whilst participating in organised police sport.

After requiring details of the police officer, the form asks for 'details of incident which resulted in injuries being received" and then the "nature of injuries', specifying that 'wherever possible full medical description of injury should be set out.' The form then seeks details of the name of the doctor consulted, witnesses, to whom the incident was reported, and a form of verification that the incident occurred. 79 There was no evidence that the respondent completed the Schedule 3 form whilst he was a serving police officer, or within six months of his medical retirement for the purposes of contending that he was suffering from PTSD. In this respect, Marks J observed at [95]: The only evidence available is to the effect that such information concerning each of the incidents or events upon which the appellant relies was given to the Commissioner of Police in some form consistent with the reporting of these incidents as part of the protocols or processes established by the New South Wales Police Force for the notification and recording of them in connection with the management and operation of the Force itself. I am unable to conclude that any such notification could be in the form of any prescribed form or to the effect of such a prescribed form as I have described it. Once again, however, the prescribed form only applied from 23 November 1984 and as was conceded by the respondent was not operative prior to that date and had no retrospective operation. 80 The incidents or events that his Honour was referring to were that the respondent had been involved in investigating numerous deaths and other serious matters prior to 1984 in respect of which he was required to prepare relevant reports, maintain occurrence pad records and other documents. Whilst his Honour found that such incidents and events were brought to the attention of the Commissioner by the respondent, his Honour noted that there was no evidence that the respondent drew the Commissioner's attention to the impact that such events or incidents had on him at any time prior to 1984 (or, I would add, thereafter). Nevertheless, his Honour concluded that there had been compliance with the provisions of s 10B(2)(a) of the Act for part of the relevant period. Although his Honour did not make clear what the relevant period was, I have assumed it was up to 23 November 1984. His Honour went on to observe at [96]: ... Furthermore, it is, in my opinion, impossible to ascertain whether and to what extent Dr Anderson's diagnosis of PTSD depends on incidents and events which occurred during the period of compliance and which occurred during the period of non-compliance. (ie., post 1984). 81 Mr Ower did not challenge his Honour's finding that the respondent was suffering from PTSD, because there was medical evidence that supported that finding, albeit diagnosed in May 2005. However, the fundamental issue was whether there was notification of the injury causing the infirmity in accordance with the requirements of s 10B(2)(a) of the Act. A requirement for certification is that the infirmity had to render the police officer incapable of performing his/her duties at the time of resignation or retirement. What the appellant contended was that the respondent did not identify the 'injury' that caused the infirmity of mind, namely, PTSD, in accordance with 10B(2)(a). 82 The respondent's application for medical discharge, which was dated 23 June 1997, listed under 'medical conditions' claimed, the following: Alcohol - liver damaged - severe ulcers stomach and gullet; complicated diverticular and polyps; depression and bilateral hernia - affecting groin. 83 The application required the respondent to indicate whether any of the medical conditions were claimed as "hurt on duty". The respondent ticked "no" in respect of each of the conditions. The Disputes Committee of State Superannuation certified those infirmities, which the appellant contended was not PTSD. During cross-examination, the respondent's evidence was that at the time of his resignation, he did not regard any of his conditions as being work related. The respondent said that he was aware there was such a condition as PTSD but that he had not realised he was suffering from that condition until diagnosed as having it in 2005. 84 In my view, s 10B(2) of the Act requires not only notification, but also that the infirmity, which is sought to be certified as rendering the police officer incapable as at the date of resignation was existing at that time. His Honour considered at [92] - [95], as set out earlier, whether there had been possible compliance with s 10B(2)(a) of the Act after 1984 and concluded that there had been no such notification. His analysis was that the respondent had not complied with the section. However, at [96], his Honour, incorrectly in my view, concluded that there had been compliance with the provisions of s 10B(2)(a) of the Act for part of the relevant period during which the events and incidents upon which the appellant relies occurred, that being, I assume (as his Honour did not make this clear), between 1979 and 1984. There was no provision for an annual superannuation allowance before 1979. 85 There was no basis for his Honour to find that there was some, or part, compliance with s 10B(2) of the Act during this period because the Commissioner of Police was notified of incidents and events via reports which the respondent was required to submit to the Commissioner of Police. 86 Furthermore, it was not open to his Honour to construe the section as requiring 'the identification of some precipitating event or circumstances that in turn brought about the injury.' Such a construction is not supported by the express words of the section. No such differentiation is made in the wording of s 10B(2)(a) of the Act, which refers specifically to the "injury" which has caused the infirmity. There was no justification on the proper construction of the section to differentiate between "events" and "injury". The legislature has not made such a distinction. 87 The difficulty with his Honour's analysis is that it is impossible to discern within the time frames prescribed by s 10B(2)(a) of the Act, whether the police officer's exposure to a traumatic event is injurious without the proximate manifestation of symptoms. 88 The practical effect of his Honour's analysis is that the notice requirements of the section are inapplicable with respect to particular injuries such as the onset of PTSD. The section is expressed in mandatory terms and, in my view, this could not have been the statutory intent. 89 The critical issue in respect of which the respondent has failed was the lack of notice required pursuant to s 10B(2)(a) of the Act. In my view, the contention by the respondent that there was substantial compliance with the requirements to give notice because the respondent advised the Commissioner of Police of traumatic events, is misconceived. There is a difference between exposure to these traumatic events and injurious consequences. Marks J determined that the respondent had PTSD at the time of his discharge. In my view, the section is applicable to PTSD. If an injury causing the PTSD had been notified prior to discharge, the respondent would have been entitled to have the infirmity causing his incapacity certified. 90 There needs not only to be notice of the fact of a circumstance, that is, a physical circumstance which may be constituted by the reporting of an event and the existence of a condition, for example, depression, but also a communication that there is a connection between these two events. In other words, there needs to be notification given by a police officer or former police officer or his medical representatives, that the events which have occurred are in some way impacting upon him physiologically, or in some other way that has the capacity of manifesting in the ultimate condition. 91 What the legislation requires is notification of an injury, which could include either a physical wound or psychic injury such as depression, which the police officer claims caused the infirmity rendering the officer incapable of performing his or her duties. 92 In this case, even though the police officer said that he was depressed, he also needed to add that this was because of what happened to him whilst carrying out his police duties, or consequence of it, in order to meet the requirement of s 10B of the Act. What is required is some evidence from the police officer, or his medical practitioner, to this effect. In this matter, the respondent had received extensive psychiatric treatment from Dr McGrath before his resignation. It was incumbent upon the member to put forward that information. In his application for medical discharge, the respondent stated that the depression was caused by alcohol related problems. There was no evidence that the depression was related to any other factor. 93 The statutory responsibility of the appellant is only to certify the infirmity. It does not enter into whether that infirmity was caused by injury. It is only concerned with whether the claimed cause of the infirmity has been notified. The next step is for the Commissioner of Police to decide, after STC has decided that the former member suffered from an infirmity, whether that infirmity is 'hurt on duty'. In this case, the respondent received a certificate under s 10B(2) of the Act. The Commissioner of Police decided that it was not a 'hurt on duty' in accordance with s 10B(3) of the Act. This included that the respondent had suffered from depression. An appeal was lodged against this determination pursuant to s 21 of the Act. This section enables a person who is aggrieved by a decision made by the Commissioner of Police under s 10B(3)(a) of the Act to apply to the District Court for a determination in relation to that decision. 94 It is clear that insofar as the injury was concerned, this was not a matter for the appellant. The disputes committee had only needed to be satisfied of the notification as required by s 10B(2) of the Act. It does not have to concern itself about the injury. Although a curious result, what is critical is the giving of timely notice of injury. In essence, the respondent's complaint is that the appellant has acted prematurely in relation to determining the notice of injury issue in the case of a disease where in fact there is no defined injury date by reference to a single traumatic event. 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 an 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 being 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 10B(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 that the notification was in the prescribed form: s 10B(2)(a1) of the Act. Thirdly, the Board certifies the 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 these 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, then there would 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. 98 In my view, the intention of the legislature in requiring the provision of notice was to ensure that, at the requisite time, the assessment which was made as to the infirmity was an assessment made at/or before the time of retirement. There are no problems that arise in respect of s 10B(1) of the Act as it applies to a member of the police force. Section 10B(2) of the Act applies to a former member of the police force. There is no limit, in terms of time, when a former police officer can apply for an annual superannuation allowance. However, there are now time limits as to when a dispute can be lodged and also an appeal lodged. Because a former police officer could apply for a certificate 20 years after retirement, the legislature has chosen to have certain notification provisions included in s 10B(2) of the Act. If the Commissioner of Police were to make a decision under s 10B(3)(a) of the Act prior to notification under s 10B(2)(a) of the Act being determined, it would render the latter section otiose. 99 On its face, the appellant has no independent role in determining whether or not notice has been given in accordance with s 10B(2)(a) of the Act. This raises the question as to whether it would be inappropriate, from the statutory viewpoint, for the appellant to go behind the notification given, or alleged to have been given to the Commissioner of Police, to determine if notice had, or had not, been given. In respect of this matter, an examination of the material found in the application for medical discharge may disclose elements of a condition that should be treated as being referable to a statement of advice as to the onset, or the existence of PTSD, and therefore constitute notice of the requisite kind. 100 Ultimately, it is a question of fact as to whether or not notice was given. In this regard, the appellant is reliant upon the advice and information it receives from the Commissioner of Police. The Commissioner of Police, as employer, has access to employment, sick leave and other records of a police officer. As such, he is in a position to assess and record the circumstances causing injury. Section 10B(2)(a) of the Act nominates the Commissioner of Police as the person to be notified as a prerequisite to benefits being payable. In circumstances where the Commissioner of Police positively asserts no notification has occurred with regard to the claimed infirmity and no records are produced to prove otherwise, which was the case here, there is no scope for the appellant to unilaterally decide that the respondent's non-compliance shall be disregarded. 101 The respondent sought to import the definition of injury and disease, as found in s 4 of the Workers Compensation Act 1987, into s 10B of the Act to assist in determining whether the respondent was hurt on duty. This led Mr Gross to refer to a number of decisions where the definition of 'injury' in s 4 of the Workers Compensation Act and the 'date of the infirmity' in s 15 and s 16 of the Workers Compensation Act was considered. The Workers Compensation Act definition of 'injury' is only relevant for the determination of the question of 'hurt on duty'. This question only arises for determination by the Commissioner of Police after the appellant has certified the infirmity under s 10B(1), or s 10B(2) of the Act and not before. 102 The appellant would trespass on the statutory responsibility of the Commissioner of Police if it were to consider the 'notice requirement' in 10B(2)(a) of the Act by reference to s 4 of the Workers Compensation Act. If the appellant were permitted to do this, then it would pre-empt the decision to be made by the Commissioner of Police under s 10B(3) of the Act, thereby rendering the subsection superfluous. There is no reference to 'hurt on duty' in s 10B(1) or s 10B(2) of the Act. It is not until s 10B(3) of the Act that the concept appears. In Lembcke v SAS Trustee Corporation [2003] NSWCA 136; 56 NSWLR 736, the Court of Appeal considered the interpretation of s 10(1A) of the Act which uses the term 'hurt on duty'. Ipp JA observed at [55] - [56] as follows: [55] There is nothing in s 10(1A) of the Police Regulation (Superannuation) Act 1906 that warrants construing it as if it were a part of the Workers Compensation Act 1987. The Police Regulation (Superannuation) Act is an entirely separate and independent statute and phrases in it must be construed by reference to its own context, not the context of the Workers Compensation Act or any other statute. The fact that like phrases are used in parts of the two Acts does not necessarily result in those phrases bearing the same meaning.

[56] Section 10(1A) provides for a superannuation allowance. Superannuation allowances are akin to pension payments. Pension payments are not ordinarily regarded as compensatory - even, for example, when they are conditional upon the beneficiary being blind: National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569. Superannuation payments, like pension payments, are granted after a consideration of the applicant's position and are entirely for the applicant's use and benefit, but not to compensate the applicant for loss (see National Insurance Co of New Zealand Ltd v Espagne (at 574) per Dixon CJ). 103 I do not find the respondent's approach of assistance in construing s 10B(2) of the Act, as it makes no reference to 'hurt on duty'. 104 It is appropriate before leaving this aspect of the appeal, to briefly address whether the Schedule 3 form of notification is still required. It was not the appellant's case that strict compliance with the form was required. The appellant acknowledged that such an approach would be contrary to s 80 of the Interpretation Act 1987. It conceded that what was required was substantial compliance as one of the pre-requisites of s 10B(2) of the Act. 105 The Regulations introducing the Schedule 3 form was repealed in 1995 and a savings provision was enacted at the same time. Relevantly, the Police Superannuation Regulation 1995 provided: Repeal 25. (1) The Police Superannuation Regulation 1984 is repealed. (2) Any act, matter or thing that, immediately before the repeal of the Police Superannuation Regulation 1984 had effect under that Regulation, is taken to have effect under this Regulation. 106 The Police Superannuation Regulation 2000 repealed the Police Superannuation Regulation 1995. Relevantly, it provided: 24 Savings Any act, matter or thing that, immediately before the repeal of the Police Superannuation Regulation 1995 under section 10 (2) of the Subordinate Legislation Act 1989 had effect under that Regulation, is taken to have effect under this Regulation. 107 The Police Superannuation Regulation 2000 was repealed by the Police Superannuation Regulation 2005 and contained a similar savings provision to that found in the Police Superannuation Regulation 2000. 108 The appellant submitted that the savings provisions as found in the various Police Superannuation Regulations, as set out above, saved the Schedule 3 form which came into existence through the 1984 Regulations. It follows, so it was submitted, that the form continues to have effect through the savings provisions as found in the Police Superannuation Regulation 1995, the Police Superannuation Regulation 2000 and the Police Superannuation Regulation 2005. 109 In short, from 1967 when the respondent was attested as a police officer, up to 21 November 1979, there was no equivalent of s 10B(2) in the Act and, therefore, there was no entitlement to an annual superannuation allowance. From 21 November 1979 to 22 November 1984, an entitlement arose for an annual superannuation allowance. However, there was no prescribed form for notice under s 10B(2)(a) of the Act. On 27 November 1984, up until 1 September 1995, the prescribed form for notice remained in place. From September 1995, up until 5 February 1998, being the date of the respondent's medical retirement, the appellant contended that the form remained in place, being saved by the Police Superannuation Regulation 1995 savings provisions. 110 Section 30 of the Interpretation Act 1987 which deals with the effect of amendment or repeal of Acts and statutory rules provides in s 30(2)(d) as follows: 30 Effect of amendment or repeal of Acts and statutory rules ... (2) Without limiting the effect of subsection (1), the amendment or repeal of an Act or statutory rule does not affect: ... (d) the operation of any savings or transitional provision contained in the Act or statutory rule. 111 Section 3 of the Subordinate Legislation Repeal Act 1985, repealed various statutes and subordinate legislation. However, the Subordinate Legislation Act 1989, pursuant to s 6, excluded the requirement for regulatory impact statements in certain cases. Such cases included, pursuant to Sch 3, matters of a savings or transitional nature. In my view, the form that was prescribed by the 1984 Regulations therefore remained in force in accordance with the savings and transitional provisions after the repeal of the Regulations. It follows that the respondent failed to comply with s 10B(2)(1a). Section 66 - Compromise

112 Upon reaching the conclusion that there had been a 'technical non compliance' with the notice provision and that the 'requirements imposed by s 10B(2) were essentially inappropriate' to the respondent's condition, his Honour resorted to the 'compromise' power under s 66 of the Act. 113 In respect of his Honour's consideration of s 66 of the SA Act, as set out earlier, as I have already observed, his Honour was required to determine a dispute in respect of an entitlement to an annual superannuation allowance that was contingent upon whether or not a statutory requirement had been satisfied. 114 Section 88(4) of the SA Act empowered his Honour to have regard to any provision of the SA Act, including s 66. The critical issue is whether the power to 'compromise' can be used to circumvent a statutory prerequisite for a benefit. His Honour found at [105] that the power should be used to obviate the 'unfairness' of disentitling the respondent because of his failure to 'comply fully or strictly with the provisions of s 10B(2) of the Act.' 115 At paragraph [114] of the judgment (set out at [69] above), his Honour detailed seven reasons as to why it was appropriate to utilise the appellant's power of compromise under s 66 of the SA Act. The first and second reasons concerned the difficulty of identifying the 'injury' for the purposes of PTSD and the third reason concerned the respondent's lack of self awareness of injury. The fourth reason flowed from the previous three and was a conclusion that the 'requirement imposed by s 10B(2) is essentially inappropriate'. 116 His Honour was correct in pointing to these difficulties. However, the section specifically refers to 'infirmity of the mind' and the fact that PTSD presents some difficulties is no warrant to disregard the requirement of notice. The respondent may very well have had little self awareness of psychiatric indicators, but he must have been aware of the symptoms he was suffering. This is not a reason to exercise the power to compromise under s 66 of the SA Act, assuming such power was available. 117 The fifth, sixth and seventh reasons proffered by his Honour, concerned the amendment to the notice requirement and the fact that there was a 'technical' non-compliance for only part of the period. As I have already demonstrated, the finding of 'part compliance' was misconceived, and therefore, these reasons hold no weight.

Finally, I would observe that the natural and ordinary meaning of the word 'compromise' means or signifies that mutual concessions are made between the parties. The "compromise" determined by his Honour was unilateral and had the effect of overriding a clear statutory provision. In my view, this could not have been the legislative intent. 118 The question of whether 'notice' had been given under s 10B(2)(a) of the Act was not a question capable of compromise. A decision to circumvent this statutory requirement did not involve a 'compromise' as that term is ordinarily understood. Accordingly, it was an error of law to invoke s 66 of the SA Act. ORDERS

119 I make the following orders: 1. Leave to appeal is granted. 2. The appeal is upheld. 3. The decision of Marks J that Mr Hazelwood was successful in his appeal pursuant to s 88 of the Superannuation Administration Act 1996 is quashed. 4. Costs are reserved. 5. Any submissions by the appellant on costs shall be filed within 14 days. The respondent will have a further 14 days to file submissions on costs and unless either party applies to be heard on costs, the Full Bench will determine any issues on the papers. 120 PRESIDENT: The Orders of the Court are, therefore, those set out in paragraph [48].

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