SCHINNERL v THE COMMISSIONER OF POLICE

Court of Appeal (NSW)|1992-12-03|Before: Priestley JA, Kirby P, Handley JA

SCHINNERL v THE COMMISSIONER OF POLICE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, KIRBY P and HANDLEY JA 3 December 1992, 3 December 1992

SUPERANNUATION - police - claim to be made within 90 days of notification - whether oral notification sufficient to cause time to run - held: It was not. INFERIOR COURTS and TRIBUNALS - Compensation Court - implied powers of. WORDS and PHRASES - "notify". SUPERANNUATION - police officers - retirement for infirmity of body or mind - claim of anxiety depressive state - claim rejected - instruction by Commissioner for officer to be informed of rejection - entitlement of person aggrieved to have determination reconsidered by Compensation Court provided application made within 90 days after notification of decision - oral notification - letter also sent to officer - application to Compensation Court made - belated application by Commissioner, during hearing, for entitlement to amend to raise defence that application is out of time - application granted - judge (Egan CCJ) dismisses claim on acceptance of evidence of oral notification by claims officer which put application out of time - held: The notification given was not a formal and serious notification of the kind which would attract the time limit and accordingly the application was within time and should be determined on its merits. INFERIOR COURTS AND TRIBUNALS - Compensation Court - powers of - implied powers to extend time - John Fairfax and Sons Limited v Police Tribunal of New South Wales and Anor (1986) 5 NSWLR 465 (CA) referred to. WORDS and PHRASES - "notification".

Police Regulation (Superannuation) Act 1906, s10, s10B(2), s10B(3) and s21(1).

Priestley JA S10 of the Police Regulation (Superannuation) Act provides that a former member of the police Force who retires may be granted an annual superannuation allowance upon satisfying two conditions: (1) That the State Authorities Superannuation Board certifies under s10B(2) that the member would have been incapable from infirmity of body or mind to discharge his duties at the time of retirement; (2) that the Police Commissioner determine under s10B(3) that the infirmity was caused by the former member having been hurt on duty.

Mr Schinnerl, who resigned from the Police Force on December 1988, claimed to be entitled to an allowance under s10. The State Authorities Superannuation Board duly certified under s10B(2). What happened in regard to the determination under s10B(3) was as follows. Two documents dated 9 August 1989 were initialled by an Assistant Commissioner of Police. One was addressed to the Secretary, Police Superannuation Advisory Committee, the other to the Director, Police Medical Officer. The body of each document was the same: "In terms of s10B(3)(a) of the Police Regulation (Superannuation) Act 1906, as amended, I decided that the suffering by former Deg Sgt Wolfgang Schinnerl of the condition anxiety depressive state, to which the certificate of the Police Superannuation Advisory Committee relates, was not occasioned by an injury referred to in s1(2) of that Act." The document addressed to the Police Superannuation Advisory Committee concluded with a sentence, not in the other document, which said, "Former Det Sgt Schinnerl should be informed of my

decision". This sentence was no doubt intended to ensure that, by administrative action, there was compliance with sl0B(3), which required the Police Commissioner to notify the former member of his decision under the subsection.

Notification of the decision is important because s21 of the Act gives a person aggrieved by a decision of the Police Commissioner, under s10B(3), a right which is in substance a right to a further determination by a judicial officer of the Compensation Court in relation to the decision; and the application for that determination must be made "within the period of ninety days after the person is notified of that decision".

It has veen common ground in the argument in court today that there is no was in which the period of ninety days referred to in s21 can be extended. This underlines the importance of the notification.

Mr Schinnerl received a letter dated 21 September 1989 signed for the Secretary of the Police Superannuation Advisory Committee which said this:

"T refer to my letter of the 24 April 1989 concerning the certification by the Police Superannuation Advisory Committee, pursuant to s10B(2) of the Police Regulation (Superannuation) Act, 1906, that you would have been incapable, due to the infirmity of 'Anxiety Depressive State', of discharging the duties of your office at the time of your resignation from the NSW Police Force.

The Commissioner of Police has determined that the above infirmity was not occasioned by an injury referred to in sl(2) of the Act. A copy of the Commissioner's determination is attached. In view of the Commissioner's decision, it is not possibly to pay you a 'hurt on duty' pension under s10(1A) of the Act.

If you consider yourself aggrieved by the Commissioner's decision you may appeal to the Compensation Court of NSW within ninety days of the date of receipt of this letter. In this regard your attention is drawn to the provisions of s21 of the Police Regulation (Superannuation) Act.

Unfortunately, despite the fact that the Police Superannuation Advisory Committee has decided that you would have been incapable of police work at the time of your resignation, there is no provision under the Act whereby a 'non hurt on duty' benefit can be paid to a former member of the Police Force who applies for such a benefit after his or her services have been terminated."

On 11 December 1989 Mr Schinnerl filed an application in the Compensation Court for a decision that his infirmity was caused by his having been hurt on duty. In an answer filed on 3 April 1990 the Commissioner put in issue everything in Mr Schinnerl's claim. Initially there was no mention, however, of any assertion by the Commissioner that Mr Schinnerl's application to the Compensation Court had been made outside the ninety day time limit.

The hearing began before his Honour Judge Egan of the Compensation Court, on 21 January 1991. At some stage on that day the Commissioner's counsel made it known that the Commissioner wished to reply on a contention that the application to the Compensation Court had been files out of time and that there was no jurisdiction to hear the matter further. The Commissioner was permitted to amend his answer and the hearing was stood over. It does not appear from the materials before this Court whether the letter of 21 September 1989 was before Judge Egan when he granted leave to amend in order to raise the point concerning the application to the Court being out of time. It is hard for me to imagine that he would have granted the amendment had he been aware of the terms of that letter. However this may be, an amended answer was filed and at a later hearing before Judge Egan the issue whether Mr Schinnerl had been notified of the

URJ SCHINNERL v THE COMMISSIONER OF POLICE (Priestley JA) 3

Commissioner's decision within the meaning of s10B(3) on 4 September 1989, as the Commissioner alleged, was litigated as a preliminary point.

Judge Egan found that Mr Schinnerl had on 4 September 1989 spoken by telephone to Mr Galvin, an employee of the Commissioner, who worked as the Assistant Manager of the Workers Compensation Claims Unit. Judge Egan accepted the following evidence given by Mr Galvin. He said Mr Schinnerl had been in touch with him from time to time concerning what the Commissioner's decision might be and that during a telephone conversation on 4 September 1989 he had said to Mr Schinnerl:

"Hello Mr Schinnerl. It's John Galvin from the Workers Compensation Unit ringing in relation to your claim. A decision has recently been made and the Commission has chosen not to accept your claim as being duty related."

The question that has been argued here today is whether that evidence was sufficient to found what seems to me to be the legal conclusion that the Commissioner had complied with the obligation imposed upon him by s10B(3)(b). The argument put to the Court on behalf of the appellant was first that the references to notification in s10B and s2 that I have mentioned carried with them an implication that notification should be in writing. I think there is something to be said for this submission although I do not think it is necessary to decide whether it is right or not. Why I think there is something to be said for it is that the communication of the decision to a person against whom the Commissioner has made an adverse finding under s10B(3) is a matter of importance to that person. What may be quite significant superannuation rights will depend upon that person making a further application under s21(1) of the Act to the Compensation Court and that is an application which must be made within the period of ninety days after the person is notified of the commissioner's decision. You would not therefore expect the matter of notification to be treated otherwise than in a serious and formal way.

What Mr Galvin did in relation to his conversation of 4 September 1989 with Mr Schinnerl was no doubt well intentioned and meant to be helpful. So much of the conversation as he was able to remember - and the Court can only go on that part of the evidence which I earlier quoted - does not seem to me to fall into the category of a formal and serious notification. Amongst other things, when the person who wishes to make application under s21(1) of the Act to the Compensation Court does so, he must comply with the rules of that Court. R46A says that such a person must file in the Court an application for determination in or to the effect of form 60. That form sets out a number of particulars which must be included in the application. Item No 3 is "particulars of decision sought to be set aside". Mr Galvin's communication to Mr Schinnerl was not sufficient to enable Mr Schinnerl to fill particular 3 at all or to do more than fill in at best a summary of particular 4.

The Court was told from the Bar table that this year s21 has been amended so that notice under it must, since the amendment, be in writing and also must be given within a period of six months after notification of the decision. There thus seems to be no point in trying to define with any greater precision than is necessary for the decision in this case, exactly what was required under the now superseded section in the way of fulfilling the requirement of notification.

It seems to me to be sufficient to repeat that to notify as required involves a formal and serious act of notifying and the act of notifying should at the least convey enough information to the person notified to be able to comply with the requirements of the Compensation Court in filing an application to that Court under s21.

The evidence in this case does not, in my opinion, show that notification, purportedly given, was sufficient to fulfil those not over taxing criteria. I should add that it seems to me to be debatable whether the details communicated by Mr Galvin in fact informed Mr Schinnerl of the full substance of the Commissioner's decision. It seems to me that, approaching a matter of notification of this kind where the act of notification is of importance in a material sense, a requirement to communicate the decision should be regarded as one requiring communication of the whole decision and the whole decision was that which has earlier been set

out. I do not think that Mr Galvin communicated the whole of that by the words he used.

Without deciding the point on the basis last mentioned, I am content to rest my own view on what I said a little earlier, namely that failure to notify enough detail to enable the filing of a claim in the Compensation Court, complying with that Court's rules, and failure to notify in a manner both serious and formal, so that the person notified would realise an act of legal significance had taken place, requires the conclusion that, as a matter of law, what was done on 4 September was not a compliance with the Commissioner's duty to notify under s10B(3). On the other hand, what was done in the communication dated 21 September 1989 seems to me to have been a model way of compliance with the Commissioner's obligation. The letter of that date told its recipient of the need to appeal, to use the word which appears in the letter, within ninety days of the date of receipt of this letter. The Commissioner, in giving notice of that point, may have been going further than he was strictly obliged to do by his statutory duty. Nevertheless, the form of the letter is only to be commended. It stands in stark contrast to what the Commissioner has relied upon as sufficient notice in the terms used by Mr Galvin on 4 September 1989.

In my opinion, the appeal should be upheld and the first order sought in the notice of appeal should be made. The first order is that the judgement be set aside and the second order is the one numbered | in the grounds of appeal. Other orders may be dealt with after the other members of the Court have stated their opinions.

Kirby P I agree. As Priestley JA pointed out, it was common ground between theparties in this Court that there is no way whereby the Compensation Court could itself have extended time for the application which was made today. The notice of appeal originally challenged that determination. However, that point in the notice of appeal was not argued. The matter has proceeded as Priestley JA has indicated.

I do not wish to be taken as deciding that the Compensation Court had no such power of extension under its own rules to the extent that those rules are incorporated in the determination of cases of this kind. There is a penumbra of implied powers which attach to that court as a court. See John Fairfax and Sons Ltd v Police Tribunal of New South Wales and Anor (1986) 5 NSWLR 465 (CA) at 476; National Parks and Wildlife Service v Stables Perisher Pty Ltd (1990) 20 NSWLR 573 (CA) at 581. However, in view of the fact that the matter has not been argued, it is not necessary to determine it. It is sufficient to agree with the reasons which Priestley JA has given and with the orders he has proposed.

KIRBY P: The orders are therefore: (1) the appeal is allowed; (2) the award below is set aside save as to the order there made for the costs of the proceedings in the Compensation Court; (3) the matter is remitted to the Compensation Court for determination of the appellant's application to that Court; and, (4) the

SCHINNERL v THE COMMISSIONER OF POLICE (Handley JA) 5

respondent to pay the appellant's costs of the appeal but to have, if otherwise so entitled, a certificate under the Suitors' Fund Act 1951. (5) The costs of the argument of so much of the matter as proceeded in the Compensation Court, as concerned the challenge to the timeliness of the appellant's application to the Court should be borne by the respondent Commissioner, whatever the outcome of the other proceedings in that Court.

Award below set aside, save as to the order there made for the costs of the proceedings in the Compensation Court;

Matter remitted to Compensation Court for determination of the appellant's application to that Court;

The respondent to pay the appellant's costs of the appeal but to have, if otherwise so entitled, a certificate under the Suitors' Fund Act 1951; and The costs of the argument of so much of the matter as proceeded in the Compensation Court as concerned the challenge to the timeliness of the appellant's application to that Court to be borne by the respondent whatever the outcome of other proceedings in that Court.

Counsel for Appellant: B Toomey QC with M Southwick

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