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[2014] NSWCA 75
Court of Appeal (NSW)
2013-10-01
Bathurst CJ, Basten JA
Original judgment source is linked above.
Background 79Mr Woollard sought "[a]n annual superannuation allowance or gratuity", pursuant to ss 10 and 10B of the Police Superannuation Act. 80Mr Woollard was medically discharged from the NSW Police Force on 5 March 1998. Some seven years later, on 15 November 2005, he applied to the STC for a certificate, pursuant to s 10B(2) of the Police Superannuation Act, set out at [13] above. The STC, in written submissions before this Court, referred to Mr Woollard seeking "a certificate of infirmity" pursuant to s 10B(2). What the section in fact refers to is the STC certifying that a former member of the police force was "incapable, from [an identified] infirmity of body or mind, of discharging the duties of the member's office at the time of the member's resignation or retirement": s 10B(2)(b). Although this may appear to be pedantry, the outcome of this appeal turns upon precisely such fine linguistic distinctions. (Fortunately, the critical provisions did not change in the period from March 1998 to November 2005.) 81At the time he sought a superannuation allowance in November 2005, Mr Woollard was a "former member of the police force". As such, he fell within paragraph (b) of the definition of "disabled member of the police force" in s 10(1), so long as STC had certified certain matters under s 10B(2). The certificate did not need to be obtained prior to the member's resignation or retirement: s 10(1)(b). 82The preconditions to obtaining the superannuation allowance were as follows: (i) Mr Woollard had notified the Commissioner of Police before his resignation of "the injury which has caused [his] infirmity of body or mind" - s 10B(2)(a); (ii) such notification was given "within 6 months of receiving the injury" - ibid; (iii) the STC had certified that he was "incapable, from that infirmity ... of personally exercising the functions of a police officer ... at the time of [his] resignation" - s 10B(2)(c), and (iv) the Commissioner had decided that the certified infirmity was caused by him having been "hurt on duty", and the date or dates on which he was hurt on duty - s 10B(3). 83In seeking to restate the statutory scheme in terms applicable to Mr Woollard, the term "resignation" has been adopted: whether or not that is correct is not critical for present purposes, but the Court was advised that Mr Woollard was "discharged" after being certified to be incapable of personally exercising the functions of a police officer, but not because of a psychological infirmity of the kind now sought to be relied upon: Police Superannuation Act, s 14. The term "hurt on duty" picks up the concept of an injury arising out of or in the course of employment, within the meaning of the Workers Compensation Act 1987 (NSW): Police Superannuation Act, s 1(2), hurt on duty. 84This scheme involves a bifurcated system of decision-making. The Commissioner of Police is to determine whether a specified infirmity arose in the course of police duties, although that is not an entirely operational matter as it involves questions of causation which may require medical expertise. The STC, which must also act on medical advice, is required to determine whether the infirmity gives rise to an incapacity to work as a police officer. 85On 20 September 2005 Mr Woollard completed a form (provided to his solicitors by STC) being an application form for a "pension" under s 10B(2). The form did not in terms refer to an "infirmity of body or mind" but did ask "[w]hat medical conditions causing incapacity for Police duties are claimed?". Mr Woollard entered "Post Traumatic Stress Disorder". He also indicated that the date of injury was June 1996, which was the last time he carried out police duties and hence the latest date he could have been hurt on duty. The application was lodged on 15 November 2005. 86On the basis of that claim, there must have been a notification to the Commissioner of Police of that injury at some point between June and December 1996, in order to comply with the requirements of s 10B(2)(a). A report by a police medical officer 27 August 1997 recorded that Mr Woollard "has had symptoms suggestive of either Lyme disease and/or Chronic Fatigue Syndrome for about four years". The report also stated that he "feels depressed" (present tense), but the report apparently reported the results of a consultation undertaken on 15 January 1997. 87Mr Woollard's history in the police force at that time is complicated by the fact that he was required to attend the Royal Commission into the New South Wales Police Service in February 1996, and was summoned to reappear in September 1996. (Whether he attended on the latter date is unclear from the report of his consulting psychiatrist, Dr Michael Diamond, of June 2005.) From April 1997 he was involved in an investigation undertaken by the Police Integrity Commission. At some stage it appears that the Director of Public Prosecutions commenced or gave intention to commence proceedings against him, but that step was withdrawn in January 1998. He was discharged in March 1998 as medically unfit, with chronic fatigue syndrome, but the illness was not attributed to him being hurt on duty. 88However, in his application for a pension dated 20 September 2005, he confirmed that he had received a lump sum commutation of "pension or disengagement benefits", on 5 June 1996, in an amount equivalent to two years' base salary.
Application of entitlement provisions 89There may well be a fine distinction to be drawn between the concept of incapacity and that of infirmity, where the statute envisages that the latter will cause the former. It is, however, the infirmity which must be specified by the STC as the cause of an incapacity to perform functions as a police officer (s 10B(1) and (2)(c)) and which must have been caused by the member being hurt on duty, as required to be certified by the Commissioner of Police, pursuant to s 10B(3)(a). Because the concept of "hurt on duty" picks up the definition of "injury" in the Workers Compensation Act, and because the Commissioner must certify the "date or dates" on which the member was hurt on duty (or injured) there is a distinction drawn between the injury and the infirmity. The injury is to be related in some way to the course of police duties; the resultant or consequential infirmity is to be related to the ongoing capacity (or incapacity) to perform police duties. 90In the case of a physical injury these concepts will usually not give rise to difficulty. The injury could be a broken limb resulting from a motor vehicle accident which, even when healed, leaves the officer with an infirmity (or disability) which precludes the officer personally performing police duties. The same exercise may be undertaken with respect to some psychological injuries, including those which can be related to a specific event or series of events or particular conditions of employment. 91In some circumstances there may be a significant lapse of time between the injury and the infirmity (or incapacity). For example, a broken joint may heal successfully, but lead to disabling arthritis years later. The problem with psychological injuries is different, because there may be a delayed onset of the injury itself. (The extent to which that is possible with respect to post traumatic stress disorder may be controversial.) The problem in such a case is that the injury and the infirmity or incapacity may be simultaneous, but the event giving rise to the infirmity (which must be identified in order to determine whether the officer was hurt on duty) may be in the past and, because no identifiable injury occurred at the time of the event, the Commissioner will not have been notified until more than six months after the events giving rise to the injury or infirmity. Nevertheless, the requirement of notification "within 6 months of receiving the injury" may be satisfied if the term "injury" can be equated with a diagnosable psychiatric condition. 92The primary submissions of Mr Woollard were that the word "injury" in s 10B(2)(a) meant either or both of: (i) an event causing symptoms physical or psychological or both; or (ii) the onset of symptoms physical or psychological or both. This language (quite apart from its ambiguity) should not be accepted, unless the symptoms are related to the event in such a way as to demonstrate a causal connection. The purpose of notification within a given period is to allow the Commissioner to determine whether the injury arose out of or in the course of the exercise of police duties. The mere fact that the person was a police officer at the time an injury was suffered does not allow such an exercise to be undertaken. In a practical sense, what must be notified with respect to psychological injuries is, for example, a traumatic event in the course of police duties, followed by symptoms of psychological distress. However, the psychological distress must be sufficient to render the officer incapable of discharging his or her duties of office. Thus, although the certificate may be granted by the STC after the member's discharge, the certificate must state that the member "would have been incapable" of discharging those duties "at the time of the member's resignation or retirement": s 10(1), disabled member of the police force, (b) and s 10B(2)(b). Accordingly, the relevant incapacity cannot arise after the resignation or retirement. 93In any event, the proposed construction does not assist Mr Woollard, because of the dual requirements of notification, namely that it be before the member's resignation and within six months of receiving the injury. The condition can only be satisfied if the injury had been received during the time he was serving as a police officer. If the injury is to be equated to the onset of disabling symptoms, they must be apparent and notified before discharge. 94In theory, it is possible that the circumstances constituting the injury could have been notified to the Commissioner within the relevant period, although it was not then properly diagnosed. An officer with the STC appears to have accepted that any "psychological or psychiatric complaint linked to" incidents which occurred in the course of duty and "causative of the alleged infirmity of post traumatic stress disorder", could constitute a relevant injury, if notified. However, there was no evidence of any sufficient notification in the present case. Accordingly, the requirement was not satisfied.
Decision of Industrial Court 95The reasoning of the Industrial Court, to the contrary conclusion, covered 145 pages of typescript judgments. It is neither necessary nor helpful to review those reasons. On the facts established before the Industrial Court, the Court ought as a matter of law to have dismissed the application to review the decision of the STC. In reaching a contrary conclusion, it misconceived its statutory function and powers under the Police Superannuation Act, thereby arrogating to itself a jurisdiction it did not have. The decision must be set aside.
Jurisdiction of Industrial Court 96There is another reason for ordering that the appeal to the Industrial Court be dismissed: that Court had no jurisdiction in respect of the subject matter of the appeal. This is a short answer to the respondent's claim, but because it was not relied upon by the STC, it cannot form the primary basis for the decision of this Court. It would be relevant if there were a discretion as to the appropriate relief; it is relevant as to costs. 97The reason why the matter went to the Industrial Commission was that Mr Woollard received a letter dated 11 February 2010 referring to his "dispute over the rejection of his application for a certificate of incapacity". The letter further stated that on the previous day "the STC's Disputes Committee determined the dispute under section 67 of the Superannuation Administration Act 1996 by issuing a Certificate under s 10B(2) that Mr Woollard was incapable, from the infirmity of mind, namely 'Major Depressive Episode', of personally exercising the functions of a police officer ...". The letter further drew attention to a right of appeal to the Industrial Court under s 88 of the Administration Act. 98The correctness of this advice may be doubted. It was true that an appeal lay to the Industrial Court from a decision under s 67 of the Administration Act; the question was whether the decision of the STC was in fact made under s 67. Section 67, so far as relevant, is in the following terms: 67 Determination of disputes (1) A dispute under this or any other Act concerning an STC scheme is to be determined by STC or an STC disputes committee, except as otherwise provided by the regulations. ... (5) This section does not apply to a dispute in respect of which an application may be made to the District Court under section 21 of the Police Regulation (Superannuation) Act 1906. 99The entitlements conferred by the Police Superannuation Act form part of an STC scheme, as explained at [77] above. The nature of the certificate required from (and granted by) the STC is identified in s 10B(2) of the Police Superannuation Act. Mr Woollard was a person aggrieved by the decision made by the STC in that respect. There is a right of redetermination provided by the Police Superannuation Act itself in s 21: 21 Determination by District Court (1) A person who considers himself or herself aggrieved by: (a) a decision made by STC on a matter that arises under this Act by reason of a member of the police force being hurt on duty, or (b) a decision made by the Commissioner of Police under section 10A (1), 10B(3)(a), 12C(1), 12C(2) or 12D(4)(a), may, within the period of 6 months after the person is notified of that decision, apply to the District Court for a determination in relation to that decision. ... (4) The District Court, after considering an application under this section, may make a determination that the decision of STC or the Commissioner of Police, as the case may be, in respect of which the application was made: (a) be confirmed, or (b) be set aside and replaced by a different decision made by the District Court. (5) The District Court shall not make a decision referred to in subsection (4)(b) unless STC or the Commissioner of Police, as the case may be, could pursuant to this Act make that decision. (6) Where the District Court makes a decision referred to in subsection (4)(b), that decision shall, for the purposes of this Act, be deemed to be made by STC or the Commissioner of Police, as the case may be, and shall be carried into effect. 100Unless there is reason to conclude that Mr Woollard's grievance was not covered by s 21, the decision of the STC was not made under s 67 of the Administration Act. There is no doubt that the decision was one made under the Police Superannuation Act by the STC for the purposes of s 21(1)(a); there remains a question as to whether it was "on a matter that arises under this Act by reason of a member of the police force being hurt on duty". This language potentially raises two issues. One is that, at the time of his application, Mr Woollard was no longer a "member of the police force", but was a "former member of the police force". It is possible that the language of subs (1)(a) was chosen with care to reflect that distinction, but that is unlikely for several reasons. First, the words following "this Act" refer to an aspect of the decision-making process conferred on the Commissioner of Police in accordance with the provisions set out in paragraph (b). They should be understood to describe the generic situation, and not a particular class of decision made by the STC, because it made no such decisions. 101Secondly, whether the member is a continuing member or a former member, the injury must have occurred whilst the officer was a member, in order to be caused by the member being hurt on duty. Accordingly, it is an appropriate generic description of the basis of the claim, although not of the nature of the STC decision. It is generic in the sense that it operates regardless of the present status of the member. Indeed, to suggest otherwise might require consideration of the status of the member at the time the redetermination application was made, but at that stage, in practical terms, applicants are likely to be former members. 102Thirdly, although the Commissioner's function operates with respect to both members and former members, no such distinction is drawn in relation to the Commissioner's decisions in par (b). Fourthly, there is no conceivable reason or purpose in limiting redetermination of STC decisions to extant members and deny a right of review to former members. (The right given under s 88 of the Administration Act is a right of "appeal", not a right to a further determination.) 103This analysis is supported by the legislative history. Section 21 was introduced in 1979 by the Police Regulation (Superannuation and Appeals) Amendment Act 1979 (NSW). It seems that there was no right of review or appeal prior to 1979. However, the Superannuation Administration Act 1987 (NSW) provided that a dispute "under" that Act or the statutes to be administered by the State Authorities Superannuation Board established by that Act were to be determined by the Board: s 26(1) and (3). Section 26(2) provided that the section "also applies to a dispute under the Police Regulation (Superannuation) Act 1906 in relation to any matter, other than a matter relating to or arising from a question of whether or not a member of the police force or a former member of the police force was hurt on duty". Section 27 provided for an "appeal" from a determination of the Board to the Industrial Commission. There were similar provisions in the Superannuation Administration Act 1991 (NSW), which superseded and repealed the 1987 Act. The Superannuation Administration Act 1996 superseded and repealed the 1991 Act. 104If there were ever any doubt about the matter, it would appear to be clarified by the terms of s 67(5) of the Administration Act. The regime provided by s 21 is unaffected by s 67 of the Administration Act; no "appeal" can be taken to the Industrial Court from a decision in respect of which an application may be made to the District Court under s 21 of the Police Superannuation Act. Accordingly, the Industrial Court lacked jurisdiction to consider the appeal.
Costs 105The STC sought its costs in this Court in the event it was successful. Mr Woollard submitted that the matter had been pursued as a test case and that the STC should bear his costs in any event. The STC challenged that characterisation. 106Mr Woollard's claim has failed. The STC, however, induced him to take his "appeal" to the wrong forum. In the circumstances, there should be no order as to the costs of either party in this Court. 107There is a question as to whether this Court can deal with the costs incurred in the Industrial Court. This Court's decision in Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; 71 NSWLR 230 at [109] might suggest it could, but Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at [110]-[111] stated otherwise in proceedings by way of judicial review. However, in Edwards v Santos Ltd [2011] HCA 8; 242 CLR 421 at [5] the majority (French CJ, Gummow, Crennan, Kiefel and Bell JJ) took a different view of the High Court's powers under s 32 of the Judiciary Act 1903 (Cth). As Hayne J pointed out in Edwards at [7], the reasoning in that case and in Kirk are not easy to reconcile. As the ruling in Kirk deals with the powers of this Court in exercising functions of judicial review of the Industrial Court, it must be followed. The issue of the costs in the Industrial Court must be dealt with by that Court, to which the proceedings must in any event return.
Orders 108It might be thought that there is no purpose in remitting the matter to that Court, because no other answer than that reached above is available on the facts. However, there was no submission that this Court has power to make orders that should have been made by the Industrial Court: Kirk v Industrial Court at [110]. (Whether that proposition is applicable where only one result is open as a matter of law, was not raised.) On the other hand, there is no reason to suppose that this Court has any less power under ss 23 and 69 of the Supreme Court Act 1970 (NSW) than the Federal Court in exercising statutory functions of judicial review under the Migration Act 1958 (Cth) and this Court can, in the circumstances of this case, remit the matter to the Industrial Court with a direction that the purported appeal to that Court be dismissed: Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; 201 CLR 293 at [42]. 109The Court should make the following orders: (1) Set aside the orders of the Full Bench of the Industrial Court made on 8 March 2013. (2) Remit the matter to the Industrial Court with a direction that it dismiss the purported appeal filed by Phillip Woollard in the Industrial Court on 28 July 2010. (3) Remit to the Industrial Court the question of costs incurred in that Court. (4) Make no order as to the costs incurred in this Court. 110TOBIAS AJA: I agree with the orders proposed by the Chief Justice for the reasons he has expressed.
Amendments 26 November 2014 - 1st line change '2004' to '2006' Amended paragraphs: [11] 26 November 2014 - change Police Act 1900 to Police Act 1990 Amended paragraphs: [76] 26 November 2014 - 8th line change 'four' years to 'five' years Amended paragraphs: [61] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 November 2014
SAS Trustee Corporation
Woollard
Finch v Telstra Super Pty Ltd [2010] HCA 36; (2010) 242 CLR 254 Hazlewood v SAS Trustee Corporation [2008] NSWIRComm 215 Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWCCR 422 Master Education Services Pty Ltd v Ketchell [2008] HCA 38; (2008) 236 CLR 101 Rail Corporation NSW v Brown [2012] NSWCA 296; (2012) 82 NSWLR 318 Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; 71 NSWLR 230 Woollard v SAS Trustee Corporation [2012] NSWIRComm 51 Woollard v SAS Trustee Corporation (No 2) [2013] NSWIRComm 16 Texts Cited: - Category: Principal judgment Parties: SAS Trustee Corporation (Applicant) Phillip Woollard (First Respondent) Industrial Court of New South Wales (Second Respondent) Representation: Counsel: T Ower / R Perrignon (Applicant) P Menzies QC and P O'Rourke (First Respondent) Solicitors: General Counsel, SAS Trustee Corporation (Applicant) Walter Madden Jenkins Solicitors (First Respondent) Crown Solicitor's Office (Second Respondent) File Number(s): 2013/144300 Publication restriction: Nil Decision under appeal Citation: [2013] NSWIRComm 16 Date of Decision: 2013-03-08 00:00:00 Before: Boland J President, Walton J Vice-President and Backman J File Number(s): IRC 660 of 2010
The first decision of the Industrial Court 31The first decision of the Full Bench of the Industrial Court (the Full Bench) resulted from a referral of five questions to it from Haylen J, to whom the appeal concerning the applicant's refusal to include CPTSD in the first respondent's certification of incapacity was originally assigned. The parties apparently accepted that an earlier decision of the Full Bench, Hazlewood v SAS Trustee Corporation [2008] NSWIRComm 215 (Hazlewood), was fatal to Mr Woollard's appeal unless overruled. It is not necessary to determine in the present proceedings whether the decision in Hazlewood was contrary to the first decision, or whether it was correct or otherwise. The question is whether or not, in reaching the conclusion that it reached, the Full Bench made an error and whether or not that error was a jurisdictional error. 32In the first decision, the majority of the Full Bench (the majority) considered that upon the proper construction of s 10B(2)(a) of the Act, different notification was required in respect of an injury received in what they described as a "frank incident" as compared to a disease of gradual onset. In the former case they said it was necessary to notify an event, an injurious consequence and a connection between the two. By that their Honours presumably meant that both the event giving rise to the injury and the injury which resulted had to be notified. However, they stated that in the case of an infirmity of body or mind, caused by the gradual onset of disease, notification was sufficient when it was of "symptomatology sufficient to demonstrate the onset of the disease". 33In reaching this conclusion, the majority emphasised that it was necessary to consider s 10B(2)(a) of the Act in what they described as a broad context. They said (at [170]) that this involved consideration at four levels, first, the level of the subsection itself, second, the section in which the subsection falls, third, in light of the prescribed form of notice and fourth, in terms of the overall statutory scheme and legislative purpose. 34Their Honours concluded that the word "injury" in s 10B(2)(a) of the Act must take its context from the words "which has caused the member's infirmity". In those circumstances they concluded it was difficult to construe the meaning of the word "injury" to be the onset of symptoms alone. Their Honours stated that, amongst other reasons, their conclusion derived support from the form of notice contained in Sch 3 of the Police Superannuation Regulation 1984 (NSW) (the Regulations), which they concluded remained in force. They considered (at [185]) that the sections of the prescribed form of notice which inquire as to the date, time and other details of the incident, which resulted in the injuries being received, tend to indicate that the injury related to an identifiable event. 35The majority then considered that, having regard to the definition of "hurt on duty" in the Act, some assistance as to the meaning of the word "injury" could be obtained from the provisions of the Workers Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW). Their Honours referred to the definition of "injury" in the Workers Compensation Act, a decision of this Court (Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 45 NSWLR 606) and a decision of the Compensation Court (Lyons v Master Builders Association of NSW Pty Ltd (2003) 25 NSWCCR 422). Their Honours noted that these cases concluded that an incident involving a physical change in a worker could be regarded as an injury within the meaning of s 4 of that Act and reached the following conclusion (at [200]): "[200] Under the WC Act, the 'injury' which is compensable is the injurious event - that is, an event capable of causing harm which does in fact cause harm. The workers compensation authorities, in this respect, do not provide support for the contention of the appellant that the reporting of either an event capable of causing harm or of symptoms alone can constitute compliance with s 10B(2)(a)." 36Notwithstanding this conclusion their Honours formed a different view in relation to what they described as psychological infirmities. They noted that under the Workers Compensation Act a worker was entitled to compensation for psychological illness when the illness was a disease of gradual onset. They observed that in Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; (1964) 110 CLR 626 the High Court held that mental illness can be a disease within the meaning of that Act. They then concluded (at [214]), by reference to the meaning of the word "infirmity", that "a member of the police force who suffers a psychological illness in the form of a disease of gradual onset must be taken to be, as a matter of construction, hurt on duty for the purpose of the...Act". As a consequence they reached the following conclusions: "[215] In our view, this conclusion must bear upon the construction of s 10B(2)(a). The notice requirement of that sub-section should not be construed in a manner which will deprive the PRS Act from having its full and effective operation. In other words, the requirement for notice shall not be read in a manner inconsistent with the intention of the hurt on duty provisions of that legislation, namely, that additional benefits shall be payable to members with psychological infirmities - and, in particular, psychological infirmities which, of their nature, are diseases of gradual onset - contracted as a result of their work. ... [225] In view of these conclusions, we consider that the proper construction of s 10B(2)(a) is that, where the infirmity of mind is a psychological illness which is a disease of gradual onset, the injurious event requirement should be construed as concomitant with the requirement to notify symptomatology, provided that the symptomatology is sufficient to demonstrate the onset of the disease (the onset of the disease being the 'injury', causative of the ultimate infirmity (the disease itself), referred to in s 10B(2)(a)). In other words, the injurious event, in such cases, which occurs not in a frank incident but gradually over time, is notified under the sub-section by the reporting of a sufficient symptomatology." 37Boland P adopted a different approach. He concluded (at [70]-[71]) that the applicant was not entitled to rely on the information given to it by the Commissioner of Police (namely that there had been no notification of the injury) and was in error in reaching its conclusion relying on that information. He held that responsibility for determining whether notification was given lay with the applicant and there was insufficient material before him to determine if notification had been given. However, as with the majority, he appeared to conclude that the reporting of symptoms would be sufficient notification. This appears from the following paragraphs of his judgment: "[118] Section 10B(2)(a) refers to an injury that caused an infirmity of body or mind. I do not think it is contested that a traumatic event may cause an injury - a psychic injury - thereby causing an infirmity of mind, such as post traumatic stress disorder. [119] There is no doubt that in the period 1996 to 1998 Mr Woollard reported a range of conditions including fatigue, stress, poor memory, lack of concentration, lethargy, dizzy spells, anxiety, depression, impaired cognitive functions and not sleeping well. It is evident that STC accepted these conditions as the notification of an injury or injuries in accordance with the timeframe in s 10B(2)(a) and in a form that complied with s 10B(2)(b), otherwise it could not have issued a certificate in 2010 that 'Mr Woollard was incapable, from the infirmity of the mind, namely "Major Depressive Episode", of personally exercising the functions of a police officer ... at the time of his retirement.' [120] However, STC maintained the notified injury or injuries did not cause the infirmity of chronic post traumatic stress disorder. The respondent submitted that whilst the injuries and symptoms notified by the appellant supported a diagnosis of a depressive condition they were not of such a nature as to indicate the injury or injuries were causative of chronic post traumatic stress disorder. ... [122] Accordingly, having regard to what I have determined, I would propose that the question of whether the injury or injuries relied upon by the appellant may reasonably be regarded, for the purposes of s 10B(2) of the PRS Act, as causing the appellant's claimed infirmity, namely, chronic post traumatic stress disorder, be referred back to Haylen J pursuant to s 193(3) of the Industrial Relations Act." 38Unlike the majority, Boland P did not suggest that this was a result of the different operation of the section in the case of frank injuries compared to the case of diseases of gradual onset. Rather, he seemed to conclude that the reporting of symptoms could be sufficient compliance with the notice requirements in s 10B(2)(a) of the Act in all cases. 39As the conclusion of the majority raised the question of whether CPTSD was a disease of gradual onset, the Full Bench ordered that the matter be delegated to a Member of the Full Bench to take evidence in advance of a further hearing of the Full Bench, which would then determine the matter in accordance with the first decision.
The parties' submissions 43Subject to two qualifications, the applicant and Mr Woollard agreed that the majority in the first decision were incorrect in concluding that a different form of notification was required in the case of a physical injury compared to notification of a disease of gradual onset. The first qualification was that Mr Woollard submitted that if the construction of the section for which he contended (see par [52] below) was incorrect, then the conclusion of the majority was the correct alternative. The second qualification was that Mr Woollard submitted that any errors made by the Full Bench were not jurisdictional errors. 44The applicant submitted that the approach of the majority in the first decision was not to construe the section by reference to its language but rather in such a way as to obtain what they considered to be a desirable result. It submitted that such an approach was impermissible: Rail Corporation NSW v Brown [2012] NSWCA 296; (2012) 82 NSWLR 318 at [39]-[40]. 45The applicant submitted that the majority was in error in considering that the meaning of "injury" could be informed by its defined meaning in the Workers Compensation Act. It pointed out that the concept of "infirmity" of mind in the legislation predated the definition of "hurt on duty" inserted by the Amendment Act and which incorporated the reference to the Workers Compensation Act. The applicant also drew attention to the transitional provisions consequent upon the amendments in the Amendment Act. It submitted these applied the unamended legislation to injuries received prior to the passage of the amendment and the amended legislation thereafter. It submitted that it followed that the concept of injury was critically limited to the time the injury was received. It also pointed out that there is no reference to the concept of "hurt on duty" in s 10B(2)(a) as distinct from s 10B(3)(a) of the Act. 46The applicant submitted that the notice prescribed by s 10B(2)(a) of the Act required some degree of specificity. In that context, it relied on the form of notice prescribed by the Regulations. 47The applicant submitted that the reference to "injury" in s 10B(2)(a) and (b) of the Act must include a reference to the injurious event or circumstance. It referred to the requirement of the Commissioner of Police being notified within six months of the injury, the Amendment Act and its transitional provisions, the prescribed form of notice, the ordinary meaning of the words and the distinction drawn between "injury" and "infirmity". It pointed out that symptoms of the disease or infirmity do not cause the infirmity. 48Counsel for the applicant submitted at the hearing that the "injury" is also separate to the "infirmity". He submitted in the present case that the "injury" would be the traumatic event leading to the condition of post-traumatic stress disorder. It was necessary, he submitted to give notice of this event and of the injurious consequences following from those events. 49The applicant noted it was common ground that there was no notification to the Commissioner of Police prior to the first respondent's discharge or within six months thereafter of the six traumatic events referred to in par [29] above as having caused him any emotional upset. 50The applicant submitted that the error of the Full Bench was jurisdictional error. Essentially it submitted that in reaching its conclusion the Full Bench misconstrued the Act and thus misconstrued the extent of its powers. 51Mr Woollard submitted that the word "injury" in s 10B(2) of the Act had to be interpreted by reference to the context and purpose of the legislation. He said the purpose of the legislation as considered in Commissioner of Police v SAS Trustee Corporation [2002] NSWIRComm 31; (2002) 131 IR 243 was to provide valuable benefits to police officers and former police officers in relation to retirement arising from "hurt on duty" situations. He emphasised, by reference to the decision of the High Court in Finch v Telstra Super Pty Ltd [2010] HCA 36; (2010) 242 CLR 254, that such rights were valuable rights given to police officers in exchange for the services they perform. He submitted that s 10B(2)(a) was directed to establishing a temporal connection between injury causing an infirmity and the former member's period of police service. 52Mr Woollard submitted that it followed that "injury" could mean either an event causing harm or the onset of harm in the form of symptoms or both. He submitted that the notification requirement was either notice of an incident capable of causing injury and ultimately infirmity or, if there had been a report of symptomatology to the Commissioner of Police, that symptomatology being causative of the relevant infirmities. 53Mr Woollard submitted that this approach was consistent with the dictionary definition of "injury" as a harm of any kind, done or sustained or a particular form or instance of harm. He submitted that limiting the meaning of "injury" so that notification required identification of a causative event was unnecessary and inconsistent with the purpose of the Act. 54Senior counsel for Mr Woollard accepted that post-traumatic stress disorder was an injury but he said that symptoms of it were also injuries. He submitted that it would be a curious result if an officer was deprived of that to which he was otherwise entitled to by an unduly narrow construction of what the word "injury" means in the legislation. 55Senior counsel for Mr Woollard submitted that the only way a psychiatric illness can be identified was by a concatenation of the various symptoms leading to the conclusion that the illness existed. He submitted in those circumstances that whilst it may be convenient to describe the collation of symptoms as an injury, it did not mean the symptoms themselves were not injuries. He submitted that the first respondent's reporting of symptoms, albeit misdiagnosed, was sufficient notification. Senior counsel submitted by reference to the report of Dr W Sedhoff of 20 November 1996 referred to in par [30] above, that the injury was suffered in either June or August 1996. He also contended that the various traumatic events, referred to in par [29] above, were reported although not in the prescribed form. 56Mr Woollard also contended that to the extent the Full Bench made any error, it was not jurisdictional. He submitted that as the Full Bench decided something which it was authorised to decide, the error was within jurisdiction. He pointed to the fact that the jurisdiction conferred on the Industrial Court under s 88 of the Superannuation Administration Act was to exercise any function that could have been exercised by the applicant and thus its decision was within jurisdiction. 57Mr Woollard submitted that the Full Bench did not commit any of the jurisdictional errors identified by the High Court in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 177-178. He submitted that even if the Full Bench misconstrued the Act, it did not misconstrue the nature of its functions.
Consideration 58Although the principles by which legislation is to be construed are relatively well established, because of the approach taken by the majority in the first decision and the parties on the appeal, it is desirable to reiterate them. As was said by the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 at [47], the task of statutory construction must begin with the words of the statute itself considered in context, which includes the general purposes and policy of the provisions. Ascertainment of the statutory purpose may be based on an express statement of purpose in the statute, inference from the text and, where appropriate, reference to extrinsic material: Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at [23]-[25], [68] and [88]. As was pointed out by Kiefel J in that case, the starting point is the words in question, read in the context of the statute. 59Having regard to the majority's approach in the first decision, it is important to emphasise that it is not up to courts in construing a statute to consider what is or is not a desirable policy and impute that to the legislature as a matter of construction: See Australian Education Union v Department of Education and Children's Services [2012] HCA 3; (2012) 248 CLR 1 at [26]-[28]; Certain Lloyd's Underwriters v Cross supra at [26]. 60Further, care should be taken in considering the purpose of the statute divorced from the words of the statute itself. The present case affords an example. Mr Woollard submitted that as the purpose of the statute was to provide valuable benefits to police officers and former police officers in relation to retirement arising from "hurt on duty" situations, the section should be construed so as not to deprive a person of such benefits. However, the provision of the benefits in question is subject to the conditions in s 10B of the Act. In these circumstances the remarks of Gleeson CJ in Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 at [5] are apposite: "[5] Another general consideration relevant to statutory construction is one to which I referred in Nicholls v The Queen. It was also discussed, in relation to a similar legislative scheme, in Kelly v The Queen. It concerns the matter of purposive construction. In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act is to be preferred to a construction that would not promote that purpose or object. As to federal legislation, that approach is required by s 15AA of the Acts Interpretation Act 1901 (Cth). It is also required by corresponding State legislation, including, so far as presently relevant, s 18 of the Interpretation Act 1984 (WA). That general rule of interpretation, however, may be of little assistance where a statutory provision strikes a balance between competing interests, and the problem of interpretation is that there is uncertainty as to how far the provision goes in seeking to achieve the underlying purpose or object of the Act. Legislation rarely pursues a single purpose at all costs. Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose." (References omitted). This passage was approved by the High Court in Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd [2013] HCA 36; (2013) 87 ALJR 1009 at [40]-[41]. 61There is one further matter which should be noted. The applicant placed reliance on the fact that the form of notice provided for in the Regulations sought detail of the incident which resulted in the injury being received. There is sound reason for this as it would assist the Commissioner of Police in determining whether the officer was hurt on duty within the meaning of s 10B(3) of the Act. However, it does not seem to me to be capable of assisting in the construction of s 10B(2)(a), if only for the reason that the requirement for notice in the prescribed form was introduced in 1984, five years after the Amendment Act. In these circumstances it does not seem to me that the Regulations formed part of a legislative scheme such that its provisions could be called in aid of construing the section: Cf Brayson Motors Proprietary Limited (in Liquidation) v The Commissioner of Taxation for the Commonwealth of Australia [1985] HCA 20; (1985) 156 CLR 651 at 656; Master Education Services Pty Ltd v Ketchell [2008] HCA 38; (2008) 236 CLR 101 at [19]. 62The parties' submissions on s 10B(2) of the Act focused almost entirely on the meaning of the word "injury". They did not dispute the conclusion in the first decision that the applicant must satisfy itself that the notice under s 10B(2)(a) had been given (see pars [37] and [42] above). However, it should be noted that the section does not directly impose the obligation to do so on the applicant. Read literally, the sole function of the applicant under s 10B(2)(b) is to certify whether or not the infirmity of body or mind referred to in that section rendered the former police officer incapable of discharging his office. 63However, the infirmity of body or mind referred to in s 10B(2)(b) of the Act is the same infirmity referred to in s 10B(2)(a). Thus, if no notice is given of an injury causing that infirmity there is no infirmity to which s 10B(2)(b) can relate and there is no basis on which the applicant can exercise its powers and functions under s 10B(2)(b). 64The critical question is thus what is meant by "injury". The parties in my opinion were correct in their submissions that there was no basis for giving the word a different meaning depending on whether the injury is a frank (physical) injury or a disease of gradual onset. In each case what must be notified is an injury. If, contrary to Mr Woollard's submissions, symptoms of a subsequently discovered disease cannot constitute an injury, then irrespective of whether the injury was a physical injury or a disease of gradual onset, the notice requirements would not be satisfied. In concluding in the first decision that it was consistent with the purposes of the Act to give a different meaning to the word "injury" depending on the nature of the injury, their Honours committed the error of imputing to the legislature an intention which they regarded as desirable rather than one which could be derived from the legislation considered in context. 65It is also important to note that s 10B(2)(a) of the Act does not require notification of the incident which caused the injury. That would be relevant to the task of the Commissioner of Police under s 10B(3) in determining whether the officer was hurt on duty. As I indicated, that is presumably why the form prescribed by the Regulations required notification of the incident which resulted in injury. However, notification of the incident is not a requirement of s 10B(2)(b). 66There remains the question of what constitutes an "injury". The word "injury", in my view should not be given a narrow construction. It is wide enough to encompass a psychiatric disorder as well as a physical injury. This construction is consistent with the definition of "injury" in the relevant workers' compensation legislation as existed at the time s 10B was introduced into the Act (Workers' Compensation Act 1926 (NSW)) and s 10 being amended to both delete the expression "wound or injury" and add the definition of "disabled member of the police force". The definition of "injury" in the Workers' Compensation Act 1926 was in the following terms: "injury means personal injury arising out of or in the course of employment, and includes - (a) a disease which is contracted by the worker in the course of his employment whether at or away from his place of employment and to which the employment was a contributing factor; and (b) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to such aggravation, acceleration, exacerbation or deterioration; but does not, save in the case of a worker employed in or about a mine to which the Coal Mines Regulation Act, 1912, applies, include a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act, 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined." 67In circumstances where it was stated in the Second Reading Speech in respect of the Amendment Act that the intention was to confer benefits in circumstances where a worker would be entitled to workers' compensation benefits (see par [21] above) it seems appropriate and consistent with the workers' compensation legislation, to include a psychiatric disease within the definition of "injury". That also enables s 10B(2) and s 10B(3) of the Act, which incorporate the concept of "hurt on duty", to be read harmoniously. 68Whilst that may lead to some awkwardness of construction of s 10B(2)(b) of the Act in circumstances where the injury and infirmity of mind are identical, that does not in my opinion alter the position. The same consequences could follow from a physical injury, for example, with the loss of a limb, both the injury and the resulting infirmity are the loss. 69Therefore CPTSD can be an injury under the Act. However, it was not notified. What was notified was there were symptoms which may have been consistent with the disease. The underlying cause of these symptoms was either not diagnosed or misdiagnosed at the time of Mr Woollard's retirement and only diagnosed some years later as symptomatic of post-traumatic stress disorder. It does not seem to me that these symptoms could be described as the relevant injury for the purpose of s 10B(2)(a) of the Act. 70In this regard it is important that for the purposes of s 10B(2)(a) of the Act, the relevant injury must be causative of the infirmity of body or mind. The symptoms reported may have been the result of the infirmity but they could not be said to be the cause of it. 71It follows in my opinion that the majority in the first decision erred in concluding that notice of the injury, giving rise to the infirmity of CPTSD was given.
Jurisdictional error 72In my opinion the error made by the Full Bench was jurisdictional error. First, in concluding that in the present case notification of symptoms of an injury was sufficient notification of the injury, the Full Bench misconstrued s 10B(2)(a) of the Act. That misconstruction led the Full Bench to misconceive the extent of its powers in the present case: Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [72]. Irrespective of whether in all cases such an erroneous misconstruction of a statute would amount to jurisdictional error, in the present case it led the Full Bench to order that Boland P exercise the functions of the applicant under s 10B(2)(b) in circumstances where the absence of notice under s10B(2)(a) meant there was no power to do so. In my opinion this amounted to jurisdictional error.
[2007] HCA 47
(2009) 239 CLR 27
(1998) 45 NSWLR 606
(2012) 248 CLR 1
(1985) 156 CLR 651
(2007) 232 CLR 138
(2012) 248 CLR 378
(2002) 131 IR 243
(2013) 87 ALJR 1009
(1995) 184 CLR 163
(1964) 110 CLR 626
(2010) 242 CLR 254
(2010) 239 CLR 531
(2003) 25 NSWCCR 422
(2008) 236 CLR 101
(2012) 82 NSWLR 318
[2008] HCA 38
[2012] HCA 3