Bigg v SAS Trustee Corporation

[2016] NSWIC 2

Industrial Court

New South Wales

Medium Neutral Citation:	Bigg v SAS Trustee Corporation [2016] NSWIC 2
Hearing dates:	9 December 2015
Date of orders:	15 February 2016
Decision date:	15 February 2016
Before:	Schmidt J
Decision:	(1)   Mr Bigg’s summons is dismissed. (2)   Unless the parties approach to be heard on costs within 14 days, Mr Bigg is to bear the Corporation’s costs, as agreed or assessed.
Catchwords:	SUPERANNUATION – appeal – appeal from a SAS Trustee Corporation decision – former police officer – whether applicant was eligible to apply for a certificate of incapacity under s 10B(2) of the Police Regulation (Superannuation) Act 1906 (NSW) – construction of the Police Regulation (Superannuation) Act 1906 (NSW) – whether the legislature intended to provide unjustly dismissed officers whose reinstatement was not ordered by the Commission the rights it there granted those who retired or resigned – summons dismissed – orders made
Legislation Cited:	Acts Interpretation Act 1901 (Cth) Corporations Act 2001 (Cth) Industrial Relations Act 1991 (NSW) Insurance (Amendment) Act 1983 (NSW) Superannuation Administration Act 1996 (NSW) Police Act 1900 (NSW) Police Legislation Further Amendment Act 1996 (NSW) Police Service Amendment Act 1995 (NSW) Police Regulation (Superannuation) Act 1906 (NSW) Workers Compensation Act 1987 (NSW) Workplace Relations Act 1996 (Cth)
Cases Cited:	Bigg v The New South Wales Police Service [1997] NSWIRComm 34; (1997) 72 IR 330 Bigg v New South Wales Police Service [1998] NSWIRComm 160; (1998) 30 IR 434 Bull v Attorney-General (NSW) [1913] HCA 60; (1913) 17 CLR 370 Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 Commissioner of Police v SAS Trustee Corporation [2002] NSWIRComm 31; (2002) 131 IR 243 Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394 Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 Khoury v Government Insurance Office of (NSW) [1984] HCA 55; (1984) 165 CLR 622 Minister for Immigration and Citizenship v Szizo [2009] HCA 37; (2009) 238 CLR 627 Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 Robinson v Commissioner for Police, NSW Police Force [2013] NSWIRComm 1027 SAS Trustee Corporation v Woollard [2014] NSWCA 75; (2014) 86 NSWLR 367 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476 Police Association of New South Wales v The New South Wales Police Service [1998] NSWIRComm 160 Project Blue Sky v ABA [1998] HCA 28; (1998) 194 CLR 355 Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396
Category:	Principal judgment
Parties:	Malcolm Lorne Bigg (Applicant) SAS Trustee Corporation (Respondent)
Representation:	Counsel: Mr T Ower (Respondent)   Solicitors: Mr M Bigg, unrepresented (Applicant) SAS Trustee Corporation
File Number(s):	IRC 467 of 2015
Publication restriction:	None

Judgment

1. Mr Bigg, a former police officer, appeals a decision of the State Super SAS Trustee Corporation given on 6 May 2015 under the Superannuation Administration Act 1996 (NSW).

2. Mr Bigg became a contributor to the Police Superannuation Scheme in 1985. He claims to have been hurt on duty, while a member of the police force, before he was dismissed in 1996. The Corporation rejected Mr Bigg’s claim that the Police Superannuation Advisory Committee had erred in concluding that he was not eligible to apply for a certificate of incapacity under s 10B(2) of the Police Regulation (Superannuation) Act1906 (NSW).

3. The complaint Mr Bigg advanced in his summons was that he had not been afforded “procedural fairness (natural justice)”’ by the Corporation. He sought orders that the Corporation's decision be rescinded and that his application for a s 10B(2) certificate be accepted. The case which he advanced in his written submissions went beyond a complaint about denial of natural justice, raising as it did questions of statutory construction. There was no issue taken about this by the Corporation.

4. It is the Police Regulation (Superannuation) Act which regulates police officers’ superannuation entitlements. Section 10B “Medical examination of disabled member and determination of whether hurt on duty”, deals with the grant of annual superannuation allowances or gratuities to certain offers and former officers. In issue between the parties is the proper construction of s 10B(2), which deals with “former member of the police force who resigned or retired”.

5. It is not in issue that Mr Bigg did not resign or retire from the police force, as those words are usually understood. He was dismissed from the police force in February 1996, pursuant to s 181B of the Police Act 1900 (NSW). That section gave the Commissioner of Police power to dismiss a police officer, if the Commissioner formed the opinion, based on information arising out of the Police Royal Commission, that the officer had engaged in corrupt conduct (or any other conduct constituting an indictable offence), and was no longer a fit and proper person to hold a position in the Police Service.

6. An application for Mr Bigg’s reinstatement to his former position was dismissed by Fisher P in March 1997 (see Bigg v The New South Wales Police Service [1997] NSWIRComm 34; (1997) 72 IR 330). Appeals from that decision brought by both the Police Association and Mr Bigg were allowed by a Full Bench of the Commission, but the reinstatement which he sought to his former position was refused (see Bigg v New South Wales Police Service [1998] NSWIRComm 160; (1998) 30 IR 434).

7. In issue on that appeal was the proper construction of s 181B of the Police Act and its interaction with the reinstatement provisions of the Industrial Relations Act 1991 (NSW); the alleged failure of the Acting Commissioner who had made the decision to dismiss Mr Bigg, to adhere to certain of the requirements of s 181B; whether the dismissal was, as a result, harsh, unreasonable or unjust; and the appropriate remedy, if the appeal succeeded. Mr Bigg appeared unrepresented at the hearing of the appeal, while the Police Association was represented.

8. The appeals succeeded in part. His dismissal was found to have been unjust, “given that the course of conduct by which the Acting Commissioner sought to follow the s 181B procedure was flawed in that the Acting Commissioner should have had regard to relevant material which was not put before him, including, in particular, the evidence given by Mr Bigg before the Police Royal Commission” (see at 460).

9. In those circumstances it was unnecessary for the Full Bench to consider “the question of whether the decision to dismiss Mr Bigg was fairly open to the Acting Police Commissioner in light of the information about him arising out of the Police Royal Commission” (see at 460).

10. The Full Bench, nevertheless, declined to order Mr Bigg’s reinstatement, concluding that the evidence demonstrated that the relationship could not be re-established and that it would be impracticable to make an order for his reinstatement or re-employment. Those conclusions rested on “the whole of the evidence given before the Police Royal Commission, the material in reply, the opinion of the Acting Commissioner of Police, and the position taken by the Police Service below and in the appeal” (at 460).

11. In the result Mr Bigg was awarded compensation under s 250(3) of the Industrial Relations Act 1991 (NSW), equal to his remuneration during the period of six months immediately before his dismissal.

12. It was not until August 2014 that Mr Bigg applied for a certificate under s 10B(2) of the Police Regulation (Superannuation) Act1906 (NSW). His application was refused, Mr Bigg not having resigned or retired from his position on the police force.

13. Mr Bigg’s case in these proceedings is, in essence, that as a matter of justice, his dismissal having been found by the Full Bench of the Commission to have been unjust, he ought to be treated as if he had resigned or retired from his position on the police force, even though his claim to be reinstated to his former position failed. He argues that properly construed, s 10B(2) permits the issue of the certificate which he seeks, given that his unjust dismissal and the Full Bench’s refusal to order his reinstatement, deprived him of the opportunity which he would otherwise would have had, to resign or retire.

14. Mr Bigg also argued that the refusal of his reinstatement application had resulted in a “procedural irregularity”, which ought not to deprive him of his superannuation entitlements under this legislative scheme. This, he submitted, was a technical difficulty, which on his approach, the Court could circumvent by leaning towards a commonsense interpretation of this legislative scheme, like the approach adopted in Weinstock v Beck [2013] HCA 14; (2013) 251 CLR 396 and Minister for Immigration and Citizenship v Szizo [2009] HCA 37; (2009) 238 CLR 627.

15. There was an injustice, he submitted, that as an unjustly dismissed officer who had not been reinstated because the relationship could not be put back together, for reasons of political pragmatism, given what had emerged from the Police Royal Commission, in him now being prevented from pursuing his superannuation entitlements. That was a matter which the Commission had not foreseen and the Court should now deal with, by the approach to s 10B(2) which he urged.

Construction of the Police Regulation (Superannuation) Act

16. Construction of the Police Regulation (Superannuation) Act must be approached in light of the principles of statutory construction discussed by Bathurst CJ in SAS Trustee Corporation v Woollard [2014] NSWCA 75 at [58]:

"... 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."

17. The Police Regulation (Superannuation) Act has no express provision stating its purpose. It can, however, be gleaned from its terms to be the provision of valuable superannuation benefits for police officers and former police officers. In Commissioner of Police v SAS Trustee Corporation [2002] NSWIRComm 31; (2002) 131 IR 243, Wright P discussed its purpose at [45] - [46] to be:

“45    … provide valuable benefits to police officers and former police officers in relation to retirement arising from "hurt on duty" situations but to do so in a measured and careful way which allots certain responsibilities for the rather complex process involved, which are, and are to be seen to be, commensurate with the important rights and responsibilities granted to the STC and to the Commissioner of Police.

46    It may be that the rather complex scheme attempts to achieve a balance, on the one hand, between the valuable rights and the need, on the other hand, for caution in too readily extending those rights if that might result in inappropriate receipt of the allowance. There seems also to be an attempt to balance the recognition of the valuable role of police officers for their service in the public interest (with the consequent entitlement for officers subject to an adverse decision to have certain rights of appeal), with corresponding rights of appeal by the relevant authorities in the case of a decision in favour of police officers. However, it would be expected that any mechanism for appeal would reflect the allocation of responsibilities earlier referred to and not be so great as to become burdensome to the officers concerned or involve a level of complexity beyond that which could be seen to be reasonable to protect the interests or roles allocated by the legislation.”

18. The Police Regulation (Superannuation) Act is undoubtedly important, beneficial legislation, which must be interpreted liberally (see Bull v Attorney-General (NSW) [1913] HCA 60; (1913) 17 CLR 370 at 384). Nevertheless, as discussed by Gleeson CJ in Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138 at [5], it must also be remembered that:

“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."

19. Further, as discussed in Khoury v Government Insurance Office of (NSW) [1984] HCA 55; (1984) 165 CLR 622 at 638 the rule that remedial provisions are to be beneficially construed so as to provide the most complete remedy of the situation with which they are intended to deal, must be restrained within the confines of "the actual language employed" and what is "fairly open" on the words used.

20. Contrary to the case which Mr Bigg advanced, it is not open to the Court to construe what the Parliament enacted in s 10B(2) by reference to considerations of what it considers the Parliament ought to have enacted, as a matter of fairness. That it has enacted legislation which does not give police officers who challenge their dismissal and who the Commission finds have been unjustly dismissed the same superannuation entitlements as those given to officers who resign or retire, cannot simply be dealt with as if that is a manifestly absurd or unreasonable outcome, or as resulting in the triumph of form over substance, as Mr Bigg contended.

21. Even if it were accepted that there was an unintended gap in s 10(B)(2), it is not open to the Court to proceed simply on the basis that it would have been dealt with by the Parliament, on the basis for which Mr Bigg contended (see Khoury at 639 there in the context of the construction of the Insurance Act 1902 (NSW) and the Insurance (Amendment) Act 1983 (NSW)).

22. Further, given the legislative history of the Police Act, which may not be overlooked when considering the proper construction of the Police Regulation (Superannuation) Act, it is not readily apparent that there is a gap in s 10B(2), in the case of dismissed officers, who the Commission finds have been unjustly dismissed, but whose reinstatement is not ordered.

Mr Bigg’s case must fail

23. Mr Bigg’s case is that he was hurt on duty while he was a police officer and accordingly ought to be entitled to the benefits provided by the legislative scheme for officers who are hurt on duty, notwithstanding his dismissal. He submits that despite its apparent clarity, there is relevant ambiguity in the statutory language used in s 10B(2), which ought to be resolved in favour of a construction which grants him the rights he claims to exercise, following his unjust dismissal.

24. It is s 10 “Superannuation allowance where member hurt on duty”, of the Police Regulation (Superannuation) Act which makes provision for disabled members of the police force to receive certain superannuation benefits. A “disabled member of the police force” is there defined to mean:

“(a) a member of the police force who is discharged after being certified, pursuant to section 10B (1), to be incapable, from a specified infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990, or

(b) a former member of the police force who resigned or retired and who, according to a certificate given pursuant to section 10B (2) at any time after the member’s resignation or retirement, was incapable, from an infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990 at the time of the member’s resignation or retirement,

that infirmity being determined, pursuant to section 10B (3) or on appeal, to have been caused by the member being hurt on duty or the former member having been hurt on duty when he or she was a member of the police force, as the case may be.”

25. Mr Bigg was not discharged in circumstances which entitled him to a certificate under s 10B(1). He contends that as an unjustly dismissed police officer, however, he falls within s 10B(2). It provides:

“(2) An annual superannuation allowance or gratuity must 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 the member’s resignation or retirement and within 6 months of receiving the injury which has caused the member’s infirmity of body or mind, of that injury, and

(b)    if the regulations so require, the notification was in the prescribed form, and

(c) 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, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990 at the time of the member’s resignation or retirement.”

26. It follows that the critical question is whether or not it can be accepted that an officer found by the Commission to have been unjustly dismissed, is under s 10B(2) “a former member of the police force who resigned or retired”.

27. Mr Bigg did not claim that he had resigned from the police force, given his dismissal on 25 February 1996 under s 181B of the Police Act, which was introduced by the Police Service Amendment Act1995 (NSW), to deal with what had emerged from the Police Royal Commission.

28. Mr Bigg’s argument was that while on its face the phrase “resigned or retired” used in s 10B (2) implied that the section applied to an officer who had not been dismissed, that overlooked the possibility of a dismissal such as his, found by the Commission to have been unjust. He contended that the Parliament had not intended, in such circumstances, to preclude a dismissed police officer from accessing the superannuation benefits granted by the legislative scheme it had enacted and that s 10B(2) “did not expressly state or imply that one must have resigned or retired”, in order to receive the benefits there provided.

29. In interpreting the subsection the words used may not be overlooked. Section 10B(2) expressly makes provision only, however, for those officers who have resigned or retired, providing as it does that a superannuation allowance or gratuity ‘must not be granted’ to such officers unless the specified conditions are complied with. The Act makes no express provision in s 10B or elsewhere, for the grant of any benefit to a dismissed officer who satisfies those conditions, even if the Commission finds the dismissal to have been unjust in proceedings brought under the 1991 Act or its successor.

30. Of course, in the event of the Commission making such a finding, if the reinstatement or re-employment power is exercised in the officer’s favour, the officer will then not have “resigned or retired”. The effect of the order is that the officer will then be placed into his former position, or some other position. In that event s 10B(2) has no application to the officer, unless subsequently he or she exercises the right to resign or retire.

26. It cannot be overlooked that s 10B(2) does not expressly deal with the case of officers who were found to have been unjustly dismissed, but who were not reinstated or re-employed as the result of an order of the Commission. Had the Parliament intended to grant such officers the superannuation benefits which Mr Bigg now claims, it clearly could have done so.

27. Instead, the Parliament has expressly confined the benefits available under s 10B(2) to officers who resigned or retired, the latter being a defined term. It follows that unless it can be concluded that the words “resigned or retired” can properly be construed as including a police officer who was dismissed and whose dismissal is later found by the Industrial Commission to have been unjust, but who is not reinstated or reemployed, Mr Bigg’s claim must fail.

28. Such a conclusion would require a strained interpretation of the statutory phrase, not in my view fairly open in this statutory scheme.

29. “Retired” is defined in s 10 to the Police Regulation (Superannuation) Act in inclusive terms, to include “discharged as referred to in section 7 or 14”. Section 7 deals with “a member of the police force who has served 20 years or more of equivalent full-time service and retires on or after attaining the age of 60 years or, being under that age, is discharged after being certified under section 8(1) to be incapable, from infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990.”

30. Mr Bigg was not so “discharged”. He did not retire after reaching the required age. Nor was he discharged after being certified under s 8 that he was “incapable, from infirmity of body or mind, of personally exercising the functions of a police officer.”

31. Nor was he discharged in the circumstances dealt with in s 14. It provides:

“14    Gratuity for discharged members not hurt on duty

(1)    Where a member of the police force:

(a)    has served for a period less than 20 years of equivalent full-time service,

(b) is discharged after being certified, pursuant to section 8 (1) or on appeal, to be incapable, from an infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990, and

(c) is not entitled to be granted an annual superannuation allowance under section 10,

STC shall, subject to subsection (3), pay to the member a gratuity of 24 months’ pay at the rate of the member’s attributed salary of office at the date of the member’s discharge.

(2)    Where a former member of the police force who, after the member’s discharge, received the gratuity payable under subsection (1) is thereafter entitled to an annual superannuation allowance or a gratuity by reason of having been hurt on duty when he or she was a member of the police force, the amount of the gratuity paid under subsection (1) shall be deducted from the annual superannuation allowance or gratuity in such instalments and at such times as STC may determine.

(3) If STC has made a determination under section 14AA in relation to a gratuity payable under subsection (1), the amount of the gratuity is reduced by the amount specified in STC’s determination.”

37. Mr Bigg’s removal from the police force did not come about as the result of steps which he took. To the contrary, he resisted that result. Despite his wishes, as the result of the views which the Assistant Police Commissioner formed about what had come to light in the Police Royal Commission, he was dismissed. Before that decision was reached, he could have resigned from the police force, but he chose not to do so.

38. That his resulting dismissal was later found by the Commission on appeal to have been unjust, because of the Assistant Commissioner’s failure to abide by required procedural steps when exercising the power of dismissal granted by s 181B, did not alter the fact that the decision to dismiss brought about a termination of his position as a police officer, which Mr Bigg had not sought and had resisted. Those circumstances do not, as a matter of common sense, comfortably fit within the concept of either resignation or retirement, even giving those words a wide definition.

39. Nevertheless, Mr Bigg’s case rested on what may broadly be described as what he claimed to be the relevant legislative intention and proper interpretation of the legislative scheme, as well as case law as to the requirements of procedural fairness and what social justice demands. For the following reasons, his case cannot be accepted on any of these bases.

40. As the Chief Justice discussed in SAS Trustee Corporation v Woollard at [1], the Police Regulation (Superannuation) Act provides for superannuation benefits for police officers who retire from the police force or are discharged on medical grounds and in certain circumstances, to officers who have been certified under s 10B of the Act as incapable of discharging their office. As to its construction, the Chief Justice said:

“14 It can be seen from that section that there are a number of preconditions to the grant of a superannuation allowance under s 10 of the Act. Although s 10B(1) is not entirely clear, in my opinion it is dealing with the position where the certification occurs at or prior to retirement. That is consistent with s 7(1) of the Act which deals with discharge after certification in accordance with s 8. It is also consistent with s 14 which deals with a payment of gratuity to a person of less than 20 years service who is discharged after certification of incapacity but who is not entitled to an allowance under s 10.

15 Section 10B(2) of the Act deals with a claim by a former police officer. That such a person is entitled to make a claim is made clear by s 10B(2)(a). In that case there are two initial preconditions. First, timely notification to the Commissioner of Police of the injury which caused the infirmity of body or mind and, second, certification by the applicant that the former officer was incapable as a result of that infirmity of discharging the duties of his office. Section 88 of the Superannuation Administration Act 1996 (NSW) confers a right of appeal from a decision of the applicant to the Industrial Court. The hearing is a hearing de novo and the Court may exercise any of the functions of the applicant.

16 If the conditions referred to in s 10B(1) or s 10B(2) of the Act are satisfied, the Commissioner of Police is then required under s 10B(3) to decide whether the infirmity was caused by the member being hurt on duty. Section 21 confers a right of appeal from a decision of the Commissioner, originally to the Compensation Court, however as from 2002, to the District Court.

17   The expression "hurt on duty" is defined in s 1(2) of the Act in the following terms:

"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."

41. In his oral submissions Mr Bigg pressed his case on the basis of an argument that following his dismissal having been determined by the Full Bench in 1998 to have been unjust, in accordance with s 246 of the 1991 Act, his non-reinstatement had reinforced that original unjust act by which his employment had been brought to an end.

42. By s 250 of the 1991 Act, the Commission was empowered to determine a claim relating to dismissal found to have been harsh, unreasonable or unjust, by ordering reinstatement, re-employment, or if they were thought to be impracticable, by ordering under s 250(3) compensation not exceeding the amount of remuneration to the applicant during the six months immediately before being dismissed.

43. An order under s 250(3), unlike an order of reinstatement under s 250(1) or re-employment under s 250(2), did not involve the former relationship being put back on foot. That is reinforced by the provision made in s 250(5), which provided:

“Orders for reinstatement, re-employment or lost wages

250 (5) When assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration that would have been payable if the applicant had succeeded in obtaining alternative employment.”

44. As was observed at [11] of the Full Bench’s 1998 decision, on appeal Mr Bigg, who appeared for himself, even though the Police Association was separately represented, sought reinstatement to his former position. That was refused, the Full Bench explaining (at 460):

“Given the conclusions we have reached, no rehearing is necessary. We have carefully considered the strong submissions made by Mr Bigg as to reinstatement. We have also considered the evidence, submissions and argument below and have concluded that they demonstrated that this employment relationship cannot be re-established. We find that it would be impracticable to make an order for reinstatement or re-employment. The whole of the evidence given before the Police Royal Commission, the material in reply, the opinion of the Acting Commissioner of Police, and the position taken by the Police Service below and in the appeal show that impracticability.”

45. The orders made were (at 460 – 461):

“We exercise a discretion under s250(5) to order the employer to pay to the appellant/applicant, within 28 days, an amount of compensation. Having regard to the circumstances of the case, the conclusions we reached about the deficiencies in the approach adopted leading to dismissal and the time from the dismissal until today, compensation is assessed at an amount equal to the remuneration of the applicant during the period of 6 months immediately before being dismissed.”

46. In the result, there is no question that despite concluding that the decision to dismiss Mr Bigg was unjust, it having been made in the circumstances discussed in the 1998 judgment, he was not restored to a position in the police force. That was the result of the events involving Mr Bigg which had been examined in the Royal Commission. It was because the Assistant Commissioner had failed to follow all of the procedures for dismissal specified by s 181B, that his dismissal was found to be unjust. Still, the Full Bench declined to interfere in the dismissal, by ordering either Mr Bigg’s reinstatement or his re-employment. Instead, he received the maximum compensation provided for under s 250(3) of the 1991 Act, for the unfairness identified.

47. Notwithstanding Mr Bigg’s views that the failure of his application for reinstatement should not be viewed as a means to sever his other entitlements, particularly those provided for under s 10B of the Police Regulation (Superannuation) Act, the fact is that the Full Bench did not exercise its discretion to interfere with the Assistant Commissioner‘s decision to dismiss him from his position as a police officer. In the result it was the decision to dismiss which had consequences for his entitlements to superannuation under the Police Regulation (Superannuation) Act, bringing as it did his position as a police officer to an end. The result of the Full Bench’s later refusal to exercise the discretion granted by the 1991 Act to interfere with that decision, was that he was not relieved of the consequences of that dismissal, so far as his potential superannuation entitlements under s 10B(2) were concerned.

48. As Mr Bigg himself submitted in his written submissions in reply, his dismissal would have only temporarily deprived him of rights to superannuation under the Police Regulation (Superannuation) Act, had the power to order reinstatement of re-employment been exercised by the Full Bench. That power was not, however, exercised in his favour.

49. Mr Bigg’s application for reinstatement to his former position on the police force having failed as it did, does not provide a basis for the conclusion that his dismissal amounted to a “resignation or retirement”. Contrary to his case, it is only police officers who resigned or retired from their positions with which s 10B(2) is concerned. The section simply does not grant police officers whose dismissal was later found to been unjust, the benefits which Mr Bigg now seeks to pursue.

50. That the dismissal resulted from the exercise of powers granted by s 181B of the Police Act, can result in no different conclusion. Unless the decision was interfered with by the Commission, exercising its powers under the 1991 Act, even if the decision was found to have been unjust, it brought an officer’s position to an end, other than as the result of the officer’s resignation or retirement.

51. The possibility that Mr Bigg might in future seek to pursue entitlements such as those which he now pursues under the Police Regulation (Superannuation) Act, was not dealt with by the Full Bench in its 1998 decision. That does not alter the fact of the refusal of his application for reinstatement; the result that his dismissal was not interfered with, unjust as it had been found to be; or that Mr Bigg did not leave the police force, either as the result of a resignation or retirement.

52. To support his contentions as to the proper construction of s 10B(2) Mr Bigg also sought to draw analogies with s 170CH(6) of the Workplace Relations Act 1996 (Cth), which are not easy to understand. He also sought to rely on what was decided in Robinson v Commissioner for Police, NSW Police Force [2013] NSWIRComm 1027, where Newall C, in the context of an application for reinstatement of an injured worker under s 241 of the Workers Compensation Act1987 (NSW), dealt with the circumstances of an officer who, after medical discharge, was conceded to be an “injured worker” within the meaning of Part 8 of that Act. Newall C concluded that the Commissioner had caused that officer to be retired, under s 72A of the Police Act 1990.

53. Section 72A is concerned with non-executive police officers found on medical grounds to be unfit to discharge or incapable of discharging their duties, who may in specified circumstances “be retired” by the Commissioner.

54. Neither these statutory provisions, the circumstances of Mr Robinson’s retirement, or the issues which arose to be resolved in that case, bear any resemblance to what here has to be decided as to the proper construction of s 10B(2). As Mr Bigg himself accepted when he said that he did not suggest that he had been “‘retired in the technical sense”, his circumstances are quite unlike those of Mr Robinson, whose retirement was brought about by an act of the Commissioner exercising the powers granted by s 72A, not the powers of dismissal granted by s 181B.

55. Further, that other provisions of the Police Act expressly grant the Commissioner powers to force retirement, also tells against the conclusion that the exercise of the power of dismissal under s 181B, which involved no retirement, whether forced or voluntary, can be treated as a retirement for the purpose of s 10B(2) of the Police Regulation (Superannuation) Act.

56. Contrary to Mr Bigg’s submissions, how an employment relationship was brought to an end is a matter of fact. In order for Mr Bigg to establish an entitlement under s 10B(2), the onus falls on him to establish on the evidence, facts which bring him within the statutory provision. This he was unable to do.

57. Mr Bigg’s argument that there could not be reliance placed on the “technicality” of the way in which his employment came to an end, namely by dismissal found to have been unjust, also cannot be accepted.

58. An officer’s entitlement under s 10B(2) depends on an the officer establishing that he or she falls within the provision the Parliament has there made. It not there, or elsewhere, having granted former officers in his position benefits which Mr Bigg seeks, it is not open to the Court to grant them by way of a strained interpretation of a different provision which has been made for others, who Parliament has provided for. The grant of such rights is not a matter for the Court.

59. As Mr Bigg himself submitted, nothing in the Police Regulation (Superannuation) Act expressly grants officers found by the Commission to have been unjustly dismissed, but whose reinstatement is refused, superannuation benefits. The Legislature could have treated such circumstances in the same way as it treated a retirement or resignation, but it did not.

60. Mr Bigg referred to numerous other authorities which did not assist his case. For example in Minister for Immigration andCitizenship v SZIZO, where it was observed at [36]:

“Notwithstanding the detailed prescription of the regime under Divs 4 and 7A and the use of imperative language it was an error to conclude that the provisions of ss 441G and 441A are inviolable restraints conditioning the Tribunal's jurisdiction to conduct and decide a review. They are procedural steps that are designed to ensure that an applicant for review is enabled to properly advance his or her case at the hearing; a failure to comply with them will require consideration of whether in the events that occurred the applicant was denied natural justice. There was no denial of natural justice in this case.”

61. That and other observations he relied on do not assist Mr Bigg, his case depending as it does on the proper construction of s 10B(2). That does not depend, as he submitted on “statutory procedural fairness provisions”, which might reflect accommodations between competing objectives, or “wholesale assumptions about rigidity, inflexibility and strictness of interpretation”.

62. Contrary to Mr Bigg’s submissions, the rules of statutory construction which the Chief Justice discussed in SAS Trustee Corporation v Woollard do not provide “more scope” for “producing workable and sensible outcomes”. While statutory purpose must be borne in mind when interpreting beneficial legislation such as this, concerned as it is to bestow important rights on police officers hurt on duty, that does not permit the Court to grant benefits which the legislation does not bestow.

63. Analogies which Mr Bigg sought to draw with remedial provisions of the Corporations Act 2001 (Cth), which were dealt with in Weinstock v Beck, also do not assist him. There, in connection with steps taken by boards and officers of companies, provision is made in s 1322(6) that “[t]he Court must not make an order under this section unless it is satisfied in every case - that no substantial injustice had been or is unlikely to be caused to any person”. There is simply no such provision in this statutory scheme, which could be of assistance to Mr Bigg.

64. That Mr Bigg would never have retired or resigned if he had not been unjustly dismissed, as he submitted, takes the matter no further. Nor do considerations of equality before the law or the notion of ‘equal justice’ discussed in Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, concerned as that case was with the parity principle on a sentence appeal.

65. Mr Bigg’s claims that he was a loyal, dutiful officer to whom his employer owed a duty of care, but who before dismissal had also dismissed his stress related illness, giving him demeaning menial duties, which he described as a virtual house arrest, exacerbating his condition, can also take the issues which here arise no further. Nor do the circumstances of his dismissal, while on long service leave, after his applications for extended sick leave had been refused.

66. That Mr Bigg holds the view that the s 181B powers were wrongly used to bring his employment to an end and that the decision to deny his s 10B(2) application compounds the damage done to him, may be accepted. Those views do not, however, provide a basis on which the orders which he seeks can be made.

67. Mr Bigg was given the opportunity to provide written submissions in reply. There he referred to other authorities and statutes which did not advance his case, including various provisions of the Acts Interpretation Act1901 (Cth), and authorities such as Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476. There at [25], the requirements of the rules of "natural justice" and "procedural fairness" were discussed and it was observed that “[a] statute may regulate and govern what is required of a tribunal or other decision-maker in these respects, and prescribe the consequences, in terms of validity or invalidity, of any departure”.

61. Authorities in which ambiguity in statutory language was considered were also referred to, as well as those which considered whether particular statutory language intended to exclude rules of natural justice and those which considered whether extrinsic material could be relied on, in interpreting legislation. Mr Bigg also referred to Project Blue Sky v ABA [1998] HCA 28; (1998) 194 CLR 355, where it was observed at [78]:

“However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. In Statutory Interpretation, Mr Francis Bennion points out:

"The distinction between literal and legal meaning lies at the heart of the problem of statutory interpretation. An enactment consists of a verbal formula. Unless defectively worded, this has a grammatical meaning in itself. The unwary reader of this formula (particularly if not a lawyer) may mistakenly conclude that the grammatical meaning is all that is of concern. If that were right, there would be little need for books on statutory interpretation. Indeed, so far as concerns law embodied in statute, there would scarcely be a need for law books of any kind. Unhappily this state of being able to rely on grammatical meaning does not prevail in the realm of statute law; nor is it likely to. In some cases the grammatical meaning, when applied to the facts of the instant case, is ambiguous. Furthermore there needs to be brought to the grammatical meaning of an enactment due consideration of the relevant matters drawn from the context (using that term in its widest sense). Consideration of the enactment in its context may raise factors that pull in different ways. For example the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that Parliament intended to deal with." (footnotes omitted)”

69. Mr Bigg submitted that s 10B(2) was “dubious”, drawing support for that submission from the provisions of s 181D of the Police Act, enacted in 1996 by the Police Legislation Further Amendment Act 1996 (NSW), which also repealed s 181B. Section 181D provides:

“181D    Commissioner may remove police officers

(1)    The Commissioner may, by order in writing, remove a police officer from the NSW Police Force if the Commissioner does not have confidence in the police officer’s suitability to continue as a police officer, having regard to the police officer’s competence, integrity, performance or conduct.

(2)    Action may not be taken under subsection (1) in relation to a Deputy Commissioner or Assistant Commissioner except with the approval of the Minister.

(3)    Before making an order under this section, the Commissioner:

(a)    must give the police officer a notice setting out the grounds on which the Commissioner does not have confidence in the officer’s suitability to continue as a police officer, and

(b)    must give the police officer at least 21 days within which to make written submissions to the Commissioner in relation to the proposed action, and

(c)    must take into consideration any written submissions received from the police officer during that period.

(4)    The order must set out the reasons for which the Commissioner has decided to remove the police officer from the NSW Police Force.

(5)    The removal takes effect when the order is made.

(6)    (Repealed)

(7)    Except as provided by Division 1C:

(a)    no tribunal has jurisdiction or power to review or consider any decision or order of the Commissioner under this section, and

(b)    no appeal lies to any tribunal in connection with any decision or order of the Commissioner under this section.

In this subsection, tribunal means a court, tribunal or administrative review body, and (without limitation) includes the Industrial Relations Commission.

(7A)    Nothing in this section limits or otherwise affects the jurisdiction of the Supreme Court to review administrative action.

(7B)   Nothing in Division 1C limits or otherwise affects the Commissioner’s power to vary or revoke an order in force under this section.

(8)   For the purposes of this Act, removal of a police officer from the NSW Police Force under this section has the same effect as if the police officer had resigned (or, in the case of a police officer who is of or above the age of 55 years, had retired) from the NSW Police Force.

(9)    The Commissioner may take action under this section despite any action with respect to the removal or dismissal of the police officer that is in progress under some other provision of this Act and despite the decision of any court with respect to any such action.”

70. Mr Bigg argued that this provision established that the words “resigned’ and “retired” used in s 10B(2) carry more than one meaning. He submitted that while on the surface the words implied that to be of either category, there must not have been a dismissal, that this overlooked the circumstance of a dismissal later found to have been unjust. He also argued that the statutory phrase "resigned or retired" provided no statutory bar to his claim, relying on Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394 at [15], a case concerned with estoppel and waiver.

71. Again, these submissions do not assist Mr Bigg.

72. That the legislature made express provision in s 181D(8), that removal under s 181D “has the same effect as if the police officer had resigned (or, in the case of a police officer who is of or above the age of 55 years, had retired) from the NSW Police Force”, a provision not made in s 181B in relation to dismissal which followed consideration of information which had emerged from the Police Royal Commission, underscores the difference between a “removal” in accordance with the regime established by s 181D or dismissal under s 181B and resignation or retirement.

73. This is supported by the provisions made in s 181C, enacted at the same time as s 181B. It gave police officers who came to the attention of the Police Royal Commission the opportunity to resign, an opportunity which Mr Bigg had, but did not pursue. Section 181B and s 181C provided:

“181B Dismissal of police officers—information arising out of Police Royal Commission

(1)    The Commissioner may, by order in writing, dismiss a police officer from the Police Service if the Commissioner has formed the opinion, based on information arising out of the Police Royal Commission, that the officer:

(a)    has engaged in corrupt conduct (or any other conduct constituting an indictable offence), and

(b)    is no longer a fit and proper person to hold a position in the Police Service.

(2)    The dismissal takes effect when the order is made.

(3)    Before deciding whether to dismiss a police officer under this section, the Commissioner must:

(a)    give the officer a notice setting out the grounds on which the Commissioner has formed the opinion referred to in subsection; and

(b)   give the officer an opportunity to make a written submission to the Commissioner within 21 days of receiving the notice, and

(c)    take into consideration any such submission received within that period.

(4)    Section 182 (Appeal to GREAT against disciplinary decision of Commissioner) does not apply to or in respect of the decision by the Commissioner to dismiss a police officer under this section.

(5) Without limiting the generality of section 218 (Industrial Relations Act 1991 not affected), nothing in this section affects Part 8 (Unfair dismissals) of Chapter 3 of the Industrial Relations Act 1991.

181C    Acceptance of resignation of police officers in certain cases

The Commissioner (or in the case of an executive officer within the meaning of section 32, the Police Board) is required to accept the resignation of a police officer from the Police Service if:

(a)   the officer tenders his or her resignation, and

(b)    the Police Royal Commission has recommended that the officer be allowed to resign”

74. Mr Bigg submitted that s 181C was irrelevant, given that his position was always that he did not wish to resign; that he thought dismissal was unjust; that he fought his dismissal; and that he was ultimately vindicated by the Full Bench’s decision.

75. These submissions cannot be accepted, given that it is the proper construction of s 10B(2) which here arises for consideration. That question must be approached in the context of the Police Act, the statutory scheme which regulates the circumstances in which police officers may resign, retire or be dismissed. In that context it is not irrelevant to consider that had Mr Bigg exercised the right to resign given by s 181C, he would undoubtedly have also had the rights which he now seeks, to a certificate under s 10B(2).

76. Under s 10B(2), having elected to resist his dismissal and having failed, ultimately to achieve an order for reinstatement, he faces the consequences of the distinction implicit in s 10B(2) between dismissal, whether under s 181B or otherwise under the provisions of the Police Act, and retirement or resignation.

77. It must also be considered that this distinction was one which the legislature did not elect to remove from s 10B(2), as it could have done when it enacted s 181B, by there including a provision such as later enacted in s 181D(8). It could have also done so by including in s 10B(2) itself, police officers whose dismissal was found by the Commission to have been unjust, but who were not reinstated, in addition to those who resigned or retired.

78. Mr Bigg also argued that the right he sought to pursue was sourced in the common law and that clear legislative intent was required, before a statutory provision would be treated as having taken away such a common law right (see Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 at [43]). That may not be accepted. Mr Bigg is not pursuing common law rights to superannuation benefits, but rather those granted by the Police Regulation (Superannuation) Act.

79. Mr Bigg also posed the question: when formulating the Statute, did the legislature intend to disenfranchise former members who were unjustly dismissed and, if so, for what plausible or logical reason? He submitted that if none could be found, it was rational to find that the legislature did not intend to adversely affect a former member unjustly dismissed.

80. The difficulty with that approach is that the question posed is the wrong one. If the construction of s 10B(2) were to be so approached, the question would have to be whether the legislature intended to provide unjustly dismissed officers whose reinstatement was not ordered by the Commission the rights it there granted those who retired or resigned? That intention is not apparent either from the words used in s 10B itself, or elsewhere in this legislative scheme.

81. Accordingly Mr Bigg’s case must fail.

Orders

82. Having so concluded the proper order is to dismiss Mr Bigg’s summons.

83. The usual order as to costs is that they follow the event, which in this case would be an order that Mr Bigg bear the Corporation’s costs. Unless the parties approach to be heard within 14 days, that will be the Court’s order.

84. For those reasons I order:

1. Mr Bigg’s summons is dismissed.

2. Unless the parties approach to be heard on costs within 14 days, Mr Bigg is to bear the Corporation’s costs, as agreed or assessed.

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Decision last updated: 15 February 2016