Calman v Commissioner of Police

[1999] HCATrans 272

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S187 of 1998

B e t w e e n -

RONALD JAMES CALMAN

Appellant

and

COMMISSIONER OF POLICE

Respondent

GAUDRON ACJ
McHUGH J
GUMMOW J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 9 SEPTEMBER 1999, AT 10.21 AM

Copyright in the High Court of Australia

MR B.J. GROSS, QC:  May it please the Court, I appear with MR H.W.H. BAUER for the appellant.  (instructed by Walter Madden Jenkins)

MR R.A. CONTI, QC:  May it please the Court, I appear with MR R.J. WEBER for the respondent.  (instructed by Office of the Solicitor, New South Wales Police Service)

GAUDRON ACJ:   Yes, Mr Gross.

MR GROSS:   Your Honours, one of the matters debated in the written submissions is what is the source of the entitlement to sick leave of the appellant.  Although there are passages in our written submissions which suggest otherwise, we concede that clause 98 of the Police Service Regulations is the source of entitlement.  We agree, in fact, with what Justice Priestley said on the subject that in the end there is no true difference between the concept of being hurt on duty, measured by reference to the Workers Compensation Act and the concept which is contained in clause 98(2)(a) where you have to have an injury:

received in the actual execution of the duty of his or her office –

At 355 – I must say all the references I will be giving are in volume 2 – Justice Priestley said, at line 15:

it is I think appropriate to treat the words “hurt on duty” in s 186(1) as carrying the same meaning as “infirmity arising from … injury received in the actual execution of the duty of … office” in cl 98 –

and then the next paragraph, line 29:

The same view as expressed above in (ii) about the equivalence of meaning in the specified phrases there italicised was expressed also in Lambidis v The Commissioner of Police –

that is a decision of the New South Wales Court of Appeal in relation to equivalent provisions.

Your Honours, we are content to argue the appeal on the basis that the appellant did have to fall within the words of clause 98, that is , we had to show an injury received in the actual execution of the duty of office.

Justice Powell, I think, refers to the way in which these various provisions interweave and the oddity is created by the fact that the appellate entitlement is worded in terms of the decision being one made of the officer being hurt on duty in terms of section 1(2) of the Police Regulation (Superannuation) Act. 

Your Honours, can I indicate one of the reasons why you have this confusion.  The police officer takes sick leave and he also receives medical treatment.  The entitlement to sick leave is provided by clause 98, however, if he wants to get his medical bills paid he, in fact, is paid under section 12D of the Police Regulation (Superannuation) Act and oddly, the payment is described as being a gratuity and the mechanism in terms of the statute is the officer applies to the Police Superannuation Board, asks for payment of the relevant account, they then transmit it to the Department; I understand that the process is now short-circuited, administratively, so all the bills go into the Police Department.  But, your Honours, the description of the appellate right, in our submission, still leaves the, what we can see is, question of the operation of clause 98 of the present circumstances.

Your Honours, can I point out that at all times, whether before the Tribunal or before the Court of Appeal, there were three alternative cases which were put on behalf of the appellant.  The first case, if your Honours would go to page 395, is as summarised by the Tribunal but thereafter receiving precious little mention.  At 395 line 36 the Tribunal says this – this is in a passage quoted in extenso by Justice Powell:

As I understand it, in the alternative, the appellant further argued that his incapacity for work was the manifestation of the disease itself within the meaning of s.4(b)(i) of the definition of ‘injury’. For the same reasons as given above the appellant cannot succeed in this appeal on this basis. We cannot accept that had the decision to transfer the appellant not been made, the anxiety disorder he was suffering from would have progressed to such a stage that he would in any event have been incapacitated for work commencing on 8 September 1993. This argument fails to recognise the significance of the timing of his absence from duty two days after he received notification of the decision to transfer him and the medical evidence that the appellant’s symptoms had stabilised and improved in the first six months of 1993.

So that was rejected by the Tribunal and although Justice Powell refers to what I might call the disease argument, he basically concentrates in his discussion on the question of whether alternative cases two and three operated, namely, exacerbation by all of the incidents or exacerbation by what is described as being the transfer decision.  So those are the three cases.  One, disease, in effect, manifesting itself, although obviously reaching a florid and disabling phase in conjunction with what really is a subsequent work event, that is the transfer decision.  Secondly, the exacerbation by all incidents collectively and, thirdly,  exacerbation by the transfer decision.

GAUDRON ACJ:   Mr Gross, does not your first argument really – is not it precluded by findings of fact?

MR GROSS:   No, your Honour, we would submit not.

GUMMOW J:   Was not the Court of Appeal limited to questions of law?

MR GROSS:   Yes, it was, and we submit that – if we go to the findings made by the Tribunal it is not possible to dismiss the argument in relation to disease by a finding of fact which is protected from ‑ ‑ ‑

GAUDRON ACJ:   But is not there implicit in that a finding that it was not a manifestation, it was a new - of the original disease?

MR GROSS:   Can I take your Honours to the findings so we have the exact text.  The findings were, in summary, that there was:

an underlying anxiety disorder –

which is a disease –

contracted in the course of his employment and to which his employment as a police officer was a contributing factor.

KIRBY J:   Where are you reading, now?

MR GROSS:   I am sorry, I am reading from 392.  Can I just go to the finding on 392 by the Tribunal?

McHUGH J:   It is not the finding.  Well, it is set out in the judgment.

MR GROSS:   Yes.  Your Honours, this is an extensive quote, verbatim, from the Tribunal.  I found it convenient to deal with that bulk incorporation by Justice Powell, rather than go back to the primary document.  I can go to either, though.  At 392, line 20:

The Tribunal is satisfied on the evidence that at the time of the appellant’s incapacity and immediately prior to it, the appellant was suffering from a disease in the nature of an underlying anxiety disorder contracted in the course of his employment and to which his employment as a police officer was a contributing factor.  It has been recognised that psychic disorders of this type can be properly categorised as diseases within the meaning of the Workers’ Compensation Act.

There is reference to Semlitch’s Case:

Moreover, it is not necessary that the employment be the sole factor in the contraction of a disease…..Consequently, it matters not that one of the factors contributing to the contraction of the appellant’s anxiety disorder was the effect on him of the untimely death of his daughter, provided that the appellant’s employment can be regarded as a contributing factor.

Now, we take that finding, that is that the disease itself, which ultimately was exacerbated, was, in compensation terms, a work‑caused disease.

We then go to 393 at the top of the page.  The Tribunal then said:

In the Tribunal’s view it is undoubtedly the case that the appellant’s incapacity for work resulted from the exacerbation of his anxiety disorder.

That exacerbation was described as being, in effect, the transfer decision.  When you have a disease which is work caused, and which is exacerbated, and you have resultant incapacity, the incapacity flows from the sum total of the disease thus caused, and the exacerbation superimposed on it. 

The finding by the Tribunal is that at the time when the exacerbating event comes along you have the disease then continuing although not producing without an exacerbation a requirement that he take leave from work.  So that if you talk about the exacerbation of a disease, you are necessarily talking about a combination of two potentially compensable events, only one of which has to be compensable within the rules laid down by clause 98.

So, for example, any work-caused disease which the worker or officer is able to tolerate so he remains at work, if, in fact, there is a deterioration in his capacity to tolerate the burdens of work, whether that deterioration is caused by natural history of the disease or by some extra event, whether it be a work event or a private event, a compensation entitlement flows, whether it be in the workers’ compensation area or in this area because the disease necessarily must be a major contributing factor and therefore causative, for relevant purposes, of the incapacity.  So that the Tribunal and the Court of Appeal all concentrated on the exacerbation, in effect, saying, “If you have an exacerbation you have to forget that the disease is work caused.”

That creates a situation equivalent to this, that this officer had to show double compensability where there was precipitation of time off work.  He already had a compensable disease but he had to show the exacerbation itself was also compensable measured by the relevant tests.

Your Honours, can I take your Honours, if I may, to what was said by this Court in Federal Broom Co v Semlitch (1964) 110 CLR 626. I would just like to take your Honours to those parts of that decision which deal with the nature of exacerbation as it operates on a disease. Your Honours, can I take your Honours to what was said by Justice Kitto at 634 where Justice Kitto is discussing the concept of exacerbation. Your Honours, at page 634 point 3, Justice Kitto is discussing Justice Moffitt’s judgment:

Justice Moffitt placed at least some of his emphasis upon the word “exacerbation”, and it seems to me that that word is the critical word for this case.  As applied to a disease it is properly used to refer to effects which the disease produces in the victim rather than to the advance of the disease itself to a more serious stage of its development.

I will pass over the dictionary definitions for the time being and resume at point 7:

Justice Moffitt was right, I think, in saying:  “There is an exacerbation of a disease where the experience of the disease by the patient is increased or intensified by an increase or intensifying of symptoms.  The word is directed to the individual and the effect of the disease upon him rather than being concerned with the underlying mechanism”.

Now, your Honours, what we have in common in those two passages is the concept that when you have an exacerbation of the disease you are describing what the disease has done in a certain setting in terms of the symptoms it then manifests, but is still, nevertheless, the disease doing it.  Of course, although the compensation provisions provide alternative routes to entitlement, if you have a disease of the relevant work-caused kind, you do not have to then satisfy the later alternative in relation to aggravation, exacerbation, et cetera.

Your Honours, on this theme, page 635, Justice Taylor, at the top of the judgment:

I agree that the appeal should be dismissed for the reasons given by Justice Kitto.

Your Honour, if I then go to Justice Windeyer, at page 636 point 4.  I will start five lines into that paragraph:

The argument for the appellant was attractively presented; but it seemed to me to depend ultimately upon ideas that I think are erroneous.  As I understood what was said, it was that in the case of a mental disease, functional and not organic in character, the disease is to be regarded as something apart from, and as it were producing, its manifestations.  An analogy was suggested with a specifically organic disease, for example one of an infective character, and its symptoms.  But even in relation to purely somatic disorders, identifiable as resulting from the derangement or degeneration of some organ, the assumed absolute distinction between the pathological condition, the disease, and its regularly occurring signs and symptoms may, it seems to me, be in some cases of doubtful validity.

I will pass over the next four sentences.

GUMMOW J:   This is all construing a definition in the 1926 New South Wales Act, is it not?

MR GROSS:   Yes.

GUMMOW J:   Is the relevant definition the same?

MR GROSS:   Yes, your Honour, it has followed the same pattern for decades.  In other words, where you have a disease qualification and then you have the aggravation acceleration exacerbation deterioration provision which can operate on a disease, whether it be a work‑caused disease or what I might call a general or community disease.  Your Honours, before I ‑ ‑ ‑

GAUDRON ACJ:   Are there definitions in the regulations or the Regulation Act?

MR GROSS:   Not of terms like exacerbation ‑ ‑ ‑

GAUDRON ACJ:   No, but of injury.

MR GROSS:   I am sorry, yes.

GAUDRON ACJ:   Because that is really what the word is in 98(2)(a).

MR GROSS:   Yes.  There is no definition, as such, in the regulations or in the Police Service Act and what we have is this matrix of different provisions perhaps best summarised – if your Honours could just go to Justice Powell’s judgment, there is a succession of provisions which give you the collective ‑ ‑ ‑

GAUDRON ACJ:   You get the definition of “injury” from the Workers Compensation Act.

MR GROSS:   Your Honour, that is so.  Do your Honours have 366?  That is clause 98, that is where you have the words:

wound or injury received in the actual execution of the duty of his or her office;

You then have a definition in the ‑ ‑ ‑

GUMMOW J:   Why is (b) within (a)?

MR GROSS:   I am sorry, your Honour?

GUMMOW J:   Why is 98(2)(b), which seems to pick up the Workers Compensation Act, talking about the same injuries as (2)(a) – (b) qualifies (a)?

MR GROSS:   Your Honour, because that is concentrating on “journey” and “recess” when presumptively the days work is done or the duty is done, that is normal transit or lunch time situations, I suppose.

GUMMOW J:   But why have they put the words in brackets “(within the meaning of the Workers Compensation Act 1987) in (b), not in (a)?

MR GROSS:   Well, your Honour, it is unclear why they have sought to do so, however, can I indicate that it was conceded by the respondent that “injury” is to be read in the sense of hurt on duty, having that extended or referred meaning where you pick up the definitions of “injury” in the Workers Compensation Act.  So that, it is difficult, as your Honour Justice Gummow indicates, to divine why one choice is made in one clause rather than another and, of course, we have the problem I mentioned at the outset, why is it that the appellate provisions providing the Police Service Act, section 186 - if your Honours would just go to page 369 you will find that provision – why is it that that actually provides, bearing in mind this is the Act under which the Police Service Regulations are made, section 186:

A police officer may appeal to GREAT against a decision of the Commissioner to grant or refuse leave of absence on full pay to the police officer during any period of absence caused by that officer being hurt on duty within the meaning of section 1(2) of the Police Regulation (Superannuation) Act 1906.

You will find that provision at page 367, line 35, where:

‘hurt on duty’ in relation to a member of the police force means injured in such circumstances as would, if he were a worker within the meaning of the Workers Compensation Act 1987 ‑ ‑ ‑

GUMMOW J:   What section are you reading from?

MR GROSS:   I am sorry, section 1(2) of the Police Regulation (Superannuation) Act.

GAUDRON ACJ:   Which is to be found at page 367.

MR GROSS:   Which is quoted in full by Justice Powell at 367, line 35.

GUMMOW J:   I just like looking at the Act.  I have been tricked by this before.

CALLINAN J:   And if we can go back to 1998, the shape of (a) is quite different from (b), is it not?  It is as if the absence from duty is occasioned by infirmity arising from a wound or injury.  Why would you need the word “wound” there anyway?  Why would not a wound be an injury?

MR GROSS:   I can only think that there is some historical reason, because whenever any debate arises as to injury, wounds plainly fall within the primary sense of injury, it is the most basic form of injury.

CALLINAN J:   But why, and then why the words “infirmity arising from”?

MR GROSS:   “Infirmity” is ‑ ‑ ‑

CALLINAN J:   It rather suggests – to me that suggests a continuing disability or infirmity as a result of an event.

MR GROSS:   Yes.  I would suggest that infirmity can be ‑ ‑ ‑

GUMMOW J:   I do not think (b) has anything to do with (a).

MR GROSS:   It can be temporary.

GUMMOW J:   (a) is talking about the absence from duties occasioned by infirmity, as Justice Callinan puts to you, arising in one or other of those ways; (b) says that the absence from duty, even if otherwise within (a), I suppose, also has the character that is the result of an injury, et cetera, then the consequence follows.

MR GROSS:   Yes.

GUMMOW J:   I do not see how you get the Workers Compensation Act into (a).

MR GROSS:   Your Honour, we got there in the Court of Appeal by virtue of the ‑ ‑ ‑

GUMMOW J:   By not reading the Act, not reading the regulations.

MR GROSS:   By the ‑ ‑ ‑

GUMMOW J:   It would not be the first time in this area.

MR GROSS:   By treating as binding in the decision of the New South Wales Court of Appeal in Lambidis where the two tests, whether it be the test for sick leave or the test for superannuation, treated as being ‑ ‑ ‑

GUMMOW J:   I know people love tests in this field.  They will not read the Act and they will not read the regulations.

MR GROSS:    ‑ ‑ ‑they were treated as being the same issue, but we fortified that submission by the concession that was made by the respondent and acted upon by all parties in the Court of Appeal, that “injury”, where it occurs in clause 98, is to be read as having the extended meaning ‑ ‑ ‑

GUMMOW J:   What is the meaning of “wound” in 98(2)(a)?

MR GROSS:   That would, I think, involve some physical injury, probably involving some breaking or damage to the integrity of the body surface.  I think that is the definition of “wound”.

CALLINAN J:   It is an injury.  A wound is clearly an injury.

MR GROSS:   Your Honour, it is.  Some of these provisions are borrowed from earlier statutes, and it is a bit hard to lose the habits of language.

GUMMOW J:   It is.  That is right.  That is the whole problem in this field.  It is over and over again.

CALLINAN J:   Can you tell me precisely what the concession was, and if it appears in the record?  You may wish to do it a little later.

MR GROSS:   It is there.  My recollection is Justice Priestley referred to that concession as, as it were ‑ ‑ ‑

KIRBY J:   He refers to Lambidis at 355, line 30.

MR GROSS:   It was Justice Powell, I am sorry.  Page 397, line 48:

(It should, however, be noted in this respect that the Respondent appeared prepared to proceed upon the basis that clause 98(2)(a) ought to be construed as though, immediately following the word “injury” there appearing, there were inserted “(within the meaning of the Workers Compensation Act 1987)”).

Your Honours, the point about clause 98 only came up in the hearing at the Court of Appeal by virtue of a notice of contention raised by the respondent at that point.  But, in the course of argument that concession was made, so in the end, for practical purposes, the case proceeded by reference to the wording of clause 98, but where “injury” had that extended meaning.

GUMMOW J:   What about the word “wound”?  Pretend that is not there.

MR GROSS:   I think “wound” was treated as being superfluous, your Honour.

GUMMOW J:   We pretend it is not there.  I see.

MR GROSS:   Yes, it was surplus to the requirements.

GAUDRON ACJ:   I suppose in the context of the word “wound”, “injury” suggests something that does not involve physical lesion.  So it might take in disease as a matter of ordinary – well, not just a matter of ordinary meaning but ‑ ‑ ‑

MR GROSS:   If there is meant to be a rigid division between the alternatives as distinct from being ‑ ‑ ‑

GUMMOW J:   It is a question of getting any meaning to the first - - -

MR GROSS:   Your Honours, can I point out it is not uncommon in this area of jurisprudence to find ‑ ‑ ‑

GUMMOW J:   It is not an area of jurisprudence.

MR GROSS:   I paused before that clause.

GUMMOW J:   Anything but that.

MR GROSS:   It is not uncommon to find overlapping expressions, for example, the expression, “aggravation, exacerbation, acceleration or deterioration” and, indeed, I think the High Court in Semlitch pointed out that you have all these overlapping alternatives.  It seems to be the trend to throw in extra words just in case you are missing something by your original statement.  It may be intended to clarify rather than create doubt but, your Honours, we would submit that wound or injury cannot be read so that injury means a non-physical event.  But, be that as it may, we are here dealing with ‑ ‑ ‑

GAUDRON ACJ:   Well, the ultimate right of appeal is with respect to the refusal to grant leave on full pay when an officer is “hurt on duty”. This document that I have got, the Police Service Regulation 1990, it is simply a regulation, is it?

MR GROSS:   Yes, it is.

GAUDRON ACJ:   It is made pursuant to what Act?

MR GROSS:   The Police Service Act.

GAUDRON ACJ:   And, the Police Service Act – so the right, prima facie, there would seem to be in 186(1) an implicit grant of a right to leave of absence on full pay, would there not?

MR GROSS:   Yes.

GAUDRON ACJ:   When “hurt on duty”, for “hurt on duty”.  So, the regulations may not give full effect to the right.

MR GROSS:   Yes, your Honour.  We would submit that the Act has to be read so it has priority over the regulation, obviously.

GAUDRON ACJ:   Well, obviously.

MR GROSS: But so that any ambiguities in the regulation are given a content consistent with the conferral of the appellate right in section 186.

GAUDRON ACJ:   It may be that 186 of the Police Service Act is the source of the right rather than the regulation.

MR GROSS: Yes. We would submit it is. Alternatively, it controls the meaning of clause 98, so when one sees at least the word “injury” there – let us ignore “wound” for the time being – “injury” has to be read in that extended sense dictated by section 186 because it would be nonsense to create an appellate right and, indeed, where it takes as given that the relevant finding that has to be made by the Commissioner where someone is having leave of absence from duties, where in fact the criterion of entitlement is being “hurt on duty” within section 1(2) of the Police Regulation (Superannuation) Act which itself incorporates the section 4 definition of “injury” in the Workers Compensation Act.

CALLINAN J:   Why do you need the regulation at all or, in particular, 98(2)? Why do you not just look at section 186 because, plainly, whatever meaning “hurt on duty” has, it cannot be varied in any way or affected even in any way, I would not have thought, by the regulation.

MR GROSS:   Your Honour, rather than treating section 186 as wiping out any offensive or conflicting language in clause 98 the parties and, we would submit, the Court of Appeal in Lambidis took the view that you are really dealing with one and the same thing where injury has that extended meaning.

CALLINAN J:   With all due respect, I am not too sure about that.  If in any way at all the regulation is different from the Act, courts have to ignore it.

MR GROSS:   Yes, your Honour, that is so.

CALLINAN J:   And we cannot use the regulation to construe the Act.

MR GROSS:   No, I was rather suggesting that the Act itself imposes upon the regulation or the reading of the regulation a statutory command and so when the Commissioner is looking at how he works clause 98, he has to comply with the legislative will as expressed in section 186.

CALLINAN J:   Well, take even 98(2)(b).  How can a regulation made under one Act invoke some other Act to give a meaning to a term in the Act under which the regulation is made?  It cannot, can it?

MR GROSS:   You can have incorporation by reference.

CALLINAN J:   But not by reference in a regulation unless the regulation ‑ well, not at all, I would not have thought, by regulation, unless that is totally consistent anyway.

McHUGH J:   If regulation 98 did not exist, it seems to me it would not have the slightest effect on this case.  The question would be whether in the terms of 186(2) the Commissioner would refuse to grant leave of absence on full pay during a period of absence caused by the officer being hurt on duty.  I just do not follow, myself, what clause 98 has to do with the case.

CALLINAN J:   And if it were not for the concession, we could not possibly look at the Workers Compensation Act, I would not have thought.

GAUDRON ACJ:   You say in answer to that, no, 186 picks up section 1(2) of the Police Regulation (Superannuation) Act and that, in turn, the definition of “hurt on duty” picks up the Workers Compensation Act?

McHUGH J:   It says, “in such circumstances as would, if he were a worker”.

MR GROSS:   Yes.

McHUGH J:   I do not know what clause 98 has to do with this case.

MR GROSS:   Your Honour, we would adopt what your Honour has just stated, because in the end we end up in GREAT, because we are making a complaint in terms of section 186 and we get to GREAT by reference to the criterion section 186, even if Regulation 98 was a blank page – if it was not there – and the question of whether “hurt on duty” should be given a particular meaning is based on the common law rather than the precise terms of the regulation.

McHUGH J:   It depends on facts and the application of section 1(2) of the Police Regulation (Superannuation) Act and the Commissioner’s refusal, independently of what is in Regulation 98 or what the Commissioner thought he had to do or otherwise.

MR GROSS:   We would agree with that.

GAUDRON ACJ:   And, on that basis, the words in Regulation 98(2)(a):

in the actual execution of the duty of his or her office -

are irrelevant.

MR GROSS:   Your Honour, we would, with respect, you have to go to the statute.

GAUDRON ACJ:   Yes.

MR GROSS:   The regulation cannot send you in any contrary direction.

GUMMOW J:   Well that is what the Acting Chief Justice has rather suggested to you.

GAUDRON ACJ:   We can forget about these words, on that argument:

received in the actual execution of the duty of his or her office -

which words seem to have been critical to the reasoning of Justice Powell.

MR GROSS:   Yes.  Your Honours, in looking then at what remains if we put Rgulation 98 to one side - I have put written submissions based on the assumption - I suppose in the end that there is no real difference between being “hurt on duty” and “in the actual execution of the duty”, because in both cases ‑ ‑ ‑

McHUGH J:   Well, there may be a lot of difference.  As it has been said in some of the cases, “he also serves who only stands and waits”, whereas if you have to be executing the duty, it may be that requires something in the Act.

MR GROSS:   Well, your Honour, if we just explore that very topic ‑ ‑ ‑

McHUGH J:   And it strengthens Justice Priestley’s analysis that what was critical in this case is the communication to the officer.

GUMMOW J:   Mr Gross, what is the regulation-making power that founds Rgulation 98? The question arises as to whether it is inconsistent with section 186, and it seems to cut it out of 186. It looks as if it does or do you read it as some expanded explanation from - - -?

MR GROSS:   Section 219.

GAUDRON ACJ:   Of - - -?

MR GROSS:   I am sorry, of the Police Service Act and, of course, the regulation is not inconsistent with this Act by virtue of section 219(1).

GUMMOW J:   Well, just look at it.  Is Regulation 98 with respect to any matter “required or permitted to be prescribed”?  It does not look like it.  Is it “necessary or convenient” for the “carrying out”?  Not if it narrows it.  I mean, it does not fit within any of the specific provisions of (2), does it?  I do not know.

McHUGH J:   Mr Gross, look, I am sorry to raise this question at this stage, I should have raised it at the commencement or even before that, but I know the Commissioner of Police - I have had him to drinks.  Is there any objection – I mean, I do not have any close relationship with him but is there any objection to me sitting on this appeal?

MR GROSS:   No, your Honour, nor could there be.  Either as a matter of principle or specifically.

McHUGH J:   Yes.

MR GROSS:   To answer the question, section 219(2)(c):

the extended, annual and other leave that may be granted to members of the Police Service -

so it is probably the “other leave” but on the other hand, if we go back to what you and Justice Gummow was indicating in 219(1):

with respect to any matter that by this Act is required or permitted to be prescribed –

well, it does not fall within – I suppose, it comes within “permitted to be prescribed”.

GUMMOW J:   Why?  You usually find a substantive provision that says “as prescribed”, or a section that says something or other “as prescribed”, then you go to the regulations.

GAUDRON ACJ:   You will have to - well, not you, but if Mr Conti wishes to rely on it, it would seem he has to say that they are necessary or convenient to be prescribed and that they are not inconsistent with the Act.

MR GROSS:   Well, it is unnecessary and inconvenient to put up a regulation which adds an extra dimension to a test which is already laid down by section 186. We would argue that matter which is “required or permitted to be prescribed”, notwithstanding paragraph 219(2)(c), would not extend to the matter as prescribed in Regulation 98.

GAUDRON ACJ:   It would not extend to the circumscribing of a right thereby impliedly granted.

MR GROSS:   Yes, it is obvious that Regulation 98 deals with leave but we would submit that not where it is ‑ ‑ ‑

GAUDRON ACJ:   You say the regulation might say, “Well, where a police officer is absent from work because of hurt on leave, he shall attend for medical examinations as and when directed by his superior officer”, or matters of that nature.

MR GROSS:   Or another regulation which, I think, is there.  The number of sick leave days you get per year.  That kind of thing.

GUMMOW J:   Where do we find in the Act - section 186(1) says:

A police officer may appeal to GREAT against a decision of the Commissioner to grant or refuse –

Where in the Act is the Commissioner empowered to grant or refuse, or is it wrapped up in 186(1) itself?  Is it one of those sections that has a double function.

MR GROSS:   There is not a specific power given.

GUMMOW J:   There is not?

MR GROSS:   There is not.  One has to go back to the Commissioner’s general powers in the Act, and that includes section 8, the Commissioner to “manage and control” Police Service.  So there are general provisions like that.

GAUDRON ACJ:   It is really the right in the individual police officer that is in issue, is it not, here?

MR GROSS:   Yes, we are.  Can I come back briefly to the question of whether disease is sufficient in the present case, in any event.

GUMMOW J:   That involves construction of section 4 of the 1987 Act, does it not?

MR GROSS:   Yes, it does.  The text of that is to be found at 368 of Justice Powell’s judgment, and paragraph (b)(i) is the disease as injury; (b)(ii) for relevant purposes is the acceleration, which is the second noun used in (b)(ii), and they are alternatives.

The High Court in Semlitch basically pointed out that when you have an exacerbation, what you have is the disease operating to have the particular disabling or incapacitating effect.  Exacerbation only, as it were, provides in a particular setting, or with some other event related to it, a situation which the same disease manifests itself in a more florid form in terms of the symptoms and presentation of the disease, but it is still the disease.  So that the first question, which does not seem to have been asked, is:  how did he get that disease?  The Tribunal and the Court of Appeal recognised that it does not have to be the last cause, it does not have to be the only cause, as long as it is a significant contributing event it is sufficient.

Now, the Tribunal having stated that in the passage which I have quoted from, it is inconsistent with that correct analysis to then say, “Oh, we can only look at the exacerbation because he was coping with the disease in the duties he was performing before the exacerbation came along”.  Both the Tribunal decision and the decision of the Court of Appeal involve that illicit hunt for the last precipitating event, focusing upon that as being the only fit subject matter of inquiry in determining compensability.  The reason why the Tribunal and the Court of Appeal dismissed the disease entitlement or disease route of entitlement was because, “Well, he was coping until then and along came this exacerbation when he received the transfer decision.

Now, can I point out that it is evident that at the time when that, as the Tribunal said, the disease was there, work caused and continuing to operate, the exacerbation came along and affected the man who, on the evidence, was under treatment and under medication for that anxiety disorder, and who was on duties which were less demanding than the rigorous requirements of general duty and so when he receives the decision he ends up taking more medication for the condition, he goes back to the doctors who have been seeing him all along and, indeed, as is evident from – perhaps it is easiest to pick up the context just from three very brief references to Justice Powell’s judgment.  Would your Honours just go to these three references?  At 378, point 35, bearing in mind that the exacerbating event occurs on 6 September 1993:

The Appellant appears to have consulted a general medical ‑ ‑ ‑

McHUGH J:   Is 6 September the relevant date?

MR GROSS:   Yes.

McHUGH J:   No, that was the date when he consulted, was it not?

MR GROSS:   Yes, the morning of 6 September 1993 at 9.30 am.

GAUDRON ACJ:   I am sorry, I have missed that date.  That was when what happened?

MR GROSS:   That is when what is called “incident eight” occurs.  He attends upon Superintendent Cleary.

GAUDRON ACJ:   And got his transfer papers.

MR GROSS:   And receives his transfer papers and is told he will probably be transferred to Kings Cross Patrol, to perform general duties.  Now, nine months before that Justice Powell says at 378, line 35:

The Appellant appears to have consulted a general medical practitioner, Dr Hindley, in early January 1993 complaining of headaches and, seemingly, of work stress.  Dr Hindley, so it would seem, referred the Appellant to Dr Lambeth, a psychiatrist, who saw the Appellant on 25 January 1993 when he made a diagnosis of “severe generalised anxiety disorder” for which he prescribed Prothiaden (a tricyclic antidepressant drug) which drug, so Dr Lambeth recorded (AB 209) effected some improvement.

The next reference is at page 379, line 45:

Although the material before the Court is not entirely clear, the Appellant’s case would seem to be that, in about May 1993, he “heard talk” that the Service was proposing to introduce a forced transfer system of police officer who lived and worked in the Newcastle area, that information apparently causing the Appellant some anxiety and causing him to consult Dr. Hindley.  It would appear that, in early June 1993, the Appellant was informed by Inspector Ebrill that he (the Appellant) was included “in the pool of eligible personal for transfer from the Hunter District to Sydney for the period 1993/1994”.  That information seems to have led to the Appellant consulting Dr. Lambeth, who seems to have referred the Appellant to a Dr. Nicholas, a clinical psychologist who diagnosed the Appellant as experiencing a severe adjustment disorder, which adjustment disorder he (Dr. Nicholas) attributed to the Appellant’s having been assaulted in 1991, and which adjustment disorder he (Dr. Nicholas) said was aggravated by the Appellant’s perception that the police service valued his (the Appellant’s) services poorly –

et cetera.

Then, your Honours, the outcome of the papers being received by the appellant in this context is summarised in the reports of Dr Hindley, Dr Lambeth and Dr Nicholas, and if your Honours would just go finally to pages 216 and 217.  Dr Hindley will be sufficient.  At page 216, Dr Hindley, that is the GP, sets out the history I have just described, of January and May 1993, seeing Dr Hindley.  At line 44:

He was able to work full time on Police boat duties however, Mr. Calman was obviously distressed by possible further confrontations with violent prisoners.  I commenced Prothiaden for mild depressive symptoms and recommended review by Dr. Lambeth, Psychiatrist.

Mr. Calman showed improvement and was coping with Police Launch duties.  As well as counselling via Dr. Lambeth I also recommend more regular sessions with Dr. Anthony Nicholas, Psychologist.

Then there is a reference at page 217 to the events of what is called 8 September 1993, incorrectly.  Then at line 15:

On this day Mr. Calman appeared severely depressed with flattened affect.  He was unable to cope with his recent transfer from the Newcastle Water Police to Kings Cross general duties.  He was unable to sleep and could not continue work.  He felt betrayed by this transfer.

I was concerned by the degree of depression and organised urgent referral back to Dr. Lambeth.  I increased Prothiaden from 75mg to 100mg nocte. 

So that the exacerbation gives him an extra 25 mg on top of the 75 mg he is having anyway, and for a man who is doing selected duties and is under psychiatric treatment because of his fears about exposure to general duties, to be transferred then to general duties, or be told he is being transferred, what you have is and exacerbation which is a manifestation or illustration of the disease process which the Tribunal has already conclusively found was work caused and still operating at the point when the exacerbation came along.  Your Honours, an exacerbation of that disease which occurs when he receives the papers necessarily takes as indisputable the fact that the disease is continuing to operate.  That was enough but, your Honours, the Court was distracted by pursuing analysis of the importance of the receipt of transfer papers.

CALLINAN J:   Can I ask you a question?  Your client was a non‑executive officer.

MR GROSS:   Yes.

CALLINAN J:   And this would have been a transfer pursuant to section 67, would it, of the Police Service Act?

MR GROSS:   Your Honour, that would seem to be so.  I just need to check whether or not transfer from one position to another applies when you are a senior constable.

CALLINAN J:   That is why I asked you.

MR GROSS:   At some levels of the police service you have a position and, indeed, there is a contract of employment qua that position and then you get moved.    Would your Honour just pardon me a moment.

CALLINAN J:   Mr Conti might be able to help us on that anyway, section 67.

MR GROSS:   Your Honours, our suspicion is that that tends to be applied to persons who are in, as it were, the promotional tree and who have specific positions which are determined but, in any event, the Commissioner has the general power, under section 8, to manage and control the police service and that includes in section 8(3):

The Commissioner may classify the various duties that members of the Police Service are required to perform and allocate the duties to be carried out by each such member.

CALLINAN J:   Position is not defined, though, is it.

GAUDRON ACJ: Section 10.

CALLINAN J:   I am sorry, it is. Yes, section 10.

MR GROSS:   My recollection is position is not defined, certainly not at the start of the Act, and it is a feature of the police service that more and more you are getting the determination of positions, the advertising of particular positions, candidates and the like, there is an appeal structure where you miss out on getting a particular position, but if you are part of the general constabulary or senior constabulary you tend not to be a candidate for that sort of position that attracts that sort of structure.

I am told Regulation 13 of the Police Service Regulation is also a source of – that the officer being directed to various duties, that perhaps is the – Regulation 13 of the regulations appears to be the related obligation that flows from the fact that the Commissioner can tell members of the police service what duties they are to perform.  Regulation 13 deals with the obligations of the police officer in that situation.

CALLINAN J:   We have not been provided with that separately, have we, all the regulations?

MR GROSS:   The Police Service Regulations.  I do not know whether your Honour has an extract or the full body of the regulation.

CALLINAN J:   Just the extract.  It may reinforce the notion of duty, that is all, if there is specific provision made and as long as the specific provision in the regulations is within the Act, and it seems to be, does reinforce that notion perhaps.

MR GROSS:   We have referred to Regulation 13 in our written submissions.

CALLINAN J:   Can you provide us with a copy of those regulations?

MR GROSS:   Yes, I will. I will get that.  Might I hand up some extracts that have been prepared by my learned friend, copies of the Police Service Regulation, which includes Regulation 13 - extracts of the regulations, but including Regulation 13.  We will get your Honours the full text of the regulations.

Your Honours, can I deal with the question your Honour Justice Callinan raised, the question of how you define the duty of the police officer?  I confess that if one looks temporarily and subject to the previous submissions and observations made, at Regulation 98 it is interesting that the expression used there is:

if the absence from duty is occasioned by infirmity arising from a wound or injury received in the actual execution of the duty of his or her office -

not “the duties”, not “particular duties”, but “the duty” and it seems to assume that “duty” is a single overall concept and not to be broken down into a whole series of sub-duties, some of which involve execution, some not.  But putting aside Regulation 98 altogether and just looking at the concept of what is involved in performance of duty, we would submit that the police service has moved a long way from the days of the Bow Street Runners and in modern times the police service, in order to be effective and efficient and meet public expectations as to its performance, requires planning, organisation and administration, including the giving and receiving of instructions, directions, advice and information.  Because it is a disciplined force, compliance with orders is essential.  So that the duty of a police officer, I suppose, ultimately is the duty to serve as required by the Act and the Commissioner’s instructions, his oath and in accordance with the common law.

CALLINAN J:   He has a duty to respond to a transfer order and is disabled from doing so because it is a transfer order, in this case.

MR GROSS:   Yes.  As a manifestation of the duty that he has, he has an obligation to respond to requirements by his superiors to attend and also to remain there while he receives instructions which, of course, are aimed at, not just his particular performance, but the overall functioning of the police service as a cohesive and efficient service.

McHUGH J:   The duties of office will go beyond what you are required to do.  In Herscu’s Case in this Court – I did not sit on it but the Court adopted a statement I had made in a case in the Court of Appeal of New South Wales concerning the shop assistant’s tribunal and that definition carried with it all that was done to facilitate the duty, even if it was not.  Herscu is in 173 CLR 276 and the Court adopted the view that in relation to a Minister’s duty that:

By accepting appointment to the office, he undertakes to perform all the duties associated with that office and, as long as he remains in office, he must perform all its duties.  The duties of a public office include those lying directly within the scope of the office, ‘those essential to the accomplishment of the main purpose for which the office was created and those which, although only incidental and collateral, serve to promote the accomplishment of the principle purposes -

of their office.

MR GROSS:   Yes.  Your Honour, the Tribunal itself accepted that a fairly broad definition as to what is encompassed in “duty”, including what is reasonably incidental and, your Honours, in so doing the Tribunal was not departing from well established principle and how you look at the duties of anyone, whether you are looking at an employee in private industry, or an officer holder, or a member of the Police Service.  Your Honours, the ‑ ‑ ‑

McHUGH J:   But you weaken your case to some extent, do you not, by concentrating on Regulation 98?  Is not your argument easier if you concentrate on the Workers Compensation Act, on the course of employment?

GUMMOW J:   Which is what the Tribunal did and basically got it right.

MR GROSS:   Yes.  Your Honour, that is so.

GUMMOW J:   At least they knew what the framework was.  They had a complaint form talking about being hurt on duty.

MR GROSS:   Your Honours, I only crept back to Regulation 98 in order to indicate that even taking the diffuse light that is shed by such a source, it contemplates itself that there is “the duty”.  In other words, that there ‑ ‑ ‑

McHUGH J:   But why mention it?  The question is, under the Act, was this in the course of the employment or did it arise out of the employment, or was it an aggravation contributed to by the employment?

MR GROSS:   Yes, well, your Honours, moving then to what is involved in being a police officer, one finds numerous formulations as to a police officer’s duty and the primary duty is to preserve the peace.  From that general function or duty one can often find other particular duties mentioned:  the duty to prevent crime;  protect life and property;  and to gain all possible information regarding crimes and offences that have been committed.  However, the police officer, on a day where there is no crime and no matters requiring immediate investigation, is performing his duty by being there, able and available to meet whatever demands are made of his superiors or by the community, and to respond to situations as they occur.

CALLINAN J:   That is common law duties are preserved by section 14.

MR GROSS:   Yes.  Without being repetitive, the work of police officers, as a group of collective constables in modern times, requires police administration, it requires organisation and orderly provision of orders and information to persons who are the ground troops of the police service.  The decision by the Court of Appeal, and putting aside for the moment the fact that it has a distinct ‑ ‑ ‑

GUMMOW J:   How did this matter get to the Court of Appeal?

MR GROSS:   It came by ‑ ‑ ‑

GUMMOW J:   Why did it not go to one judge?

MR GROSS:   I think, under the Supreme Court Act the allocation of work to divisions, if it comes from GREAT it goes to the Court of Appeal Division.

GUMMOW J:   That is because of a section in the Supreme Court Act, is it?

MR GROSS:   Yes, your Honour, it is.  The GREAT Act ‑ ‑ ‑

McHUGH J:   It has gone now, has it not?  The GREAT Act has gone, so fact as policemen are concerned, any way.  It was an Administrative Appeals ‑ ‑ ‑

MR GROSS:   No, GREAT still operates as the place where police officers who joined the force, or the police superannuation ‑ ‑ ‑

McHUGH J:   After 1988, or something.

MR GROSS:   Before 1998.

McHUGH J:   Yes, before 1988.

MR GROSS:   So, they keep the same regime.

McHUGH J:   Yes.

MR GROSS:   The new chums, after 1988, go to the Compensation Court.

McHUGH J:   Yes.

GUMMOW J:   Why is not the Tribunal a party to the process of the Court of Appeal, albeit a distinctive party, of course?

MR GROSS:   Yes.

KIRBY J:   My recollection is that the Act does permit the appeal and therefore it is an appeal, but limited to a point of law, from the Government and Related Employees Appeal Tribunal.

MR GROSS:   Yes, your Honour, that is so.

KIRBY J:   So, it is not a prerogative-type process.

MR GROSS:   No, it is a straight appeal based on a question of law, provided in terms by the statute, so, therefore, one does not have to challenge the decision maker as an inferior administrative body.  I appreciate that what the majority said in the Court of Appeal was coloured by clause 98 considerations, but just getting to the question of how they looked at duty in endeavouring to shed the regulation 98 considerations. Justice Powell and Justice Stein had their own formulations, each of which carried the same fundamental error of legal reasoning.  Justice Powell at 400, line 10, and I will ignore for the time being the fact that his Honour is obviously talking about clause 98:

the phrase “in the actual execution of the duty of his … office” would seem to comprehend the carrying out by a police officer of some lawful task connected with his duties as such police officer.

The reasoning there seems to be, he has “his duties as such police officer” but you have got to find “some lawful task” which is connected, I assume, by one removed or as an illustration or a particular part of “his duties as such police officer”.

McHUGH J:   But here the question is much more narrow, is it not?  It is whether or not the appellant, in attending at Newcastle Police Station upon Superintendent Cleary, in answer to a message to do so, was within the course of his employment, having regard to the terms of the Workers Compensation Act.

MR GROSS:   Yes.

McHUGH J:   Take a shift worker at BHP in Newcastle, at least in the old days, they would turn up at 8 o’clock on Friday morning to collect their pay, even though they were not coming off work.  Surely they are in the course of their employment when they do so, or the waterside workers in the days when it was casual employment, they attended the pay office, one would think they were in the course of their employment.  In fact, I have an idea that there is a case where a notorious gunman who was a waterside worker was shot dead on the Melbourne wharves while he was there collecting his pay, and I think it was held that he was in the course of his employment.

KIRBY J:   His Honour always remembers the vivid cases.

MR GROSS:   I am sure there are some less dramatic examples that come to mind, too.

KIRBY J:   Many, many, too many.

GAUDRON ACJ:   Has it ever been contended against you that he was not in the course of employment?

McHUGH J:   Is there not a finding against you by the Tribunal, itself, to that effect?

GUMMOW J:   Yes, because they were, correctly it seems to me, applying the statute definition of “injury” in section 4. That is what they were doing. They dismissed your claim.

McHUGH J:   They seem to me to have found as a fact that you were not in the course of employment at that time, and the question is whether, as Justice Priestley said, they erred in law in their analysis of the principles which applied and what they took into account.

MR GROSS:   Justice Powell ultimately endeavoured to relegate the case to one of fact rather than law, at 400 to 401.  Could I just go to how his Honour did it, and then go back to why it clearly involved an error of law.  At 400 lines 25 and following:

However, GREAT’s finding, as I have indicated, was to the effect that it was not the fact of his being informed of the intended transfer which exacerbated the Appellant’s anxiety disorder.  On the contrary, as GREAT said in its Decision (AB 359‑360):

“The decision was made, then communicated to the Appellant.  As a result the Appellant went into a heightened state of anxiety because of his fear of the unknown and his fear of performing general duties.

… … …

The appellant was employed to perform duties as a police officer.  Where these duties or matters incidental to the performance of those duties contribute to the exacerbation of disease he is entitled to compensation.  That is, the doing of things that a police officer is required to do and if, in the course of doing those things or things incidental to the performance of those duties, there is an event or occurrence which exacerbates an injury, the person is entitled to compensation.  In this appeal the Tribunal is not persuaded that this is the case.”

I will go back to the reasoning which generated that conclusion.

McHUGH J:   That second‑last sentence seems to be taken from Justice Windeyer’s judgment in Semlitch.

MR GROSS:   Yes.  If I can just point out that at page 401 his Honour Justice Powell goes on to say that is “a question of fact”.  Would your Honours go then to how the Tribunal reached that decision, and in the end it is just a final result of the reasoning of the Tribunal which is replete with both the analysis of legal principle and error in deriving conclusions from that analysis.

GAUDRON ACJ:   Well did not the Tribunal though pose the question as to whether the duties, or matters incidental to the performance of the duties, was the cause of the exacerbation rather than did they arise in the course of the employment?

MR GROSS:   That is so.  The Tribunal seems to have worked off a special meaning of “employment” and if I just take your Honours to how the Tribunal did it.  Your Honours, these are all matters complained of in the Court of Appeal.  The Court of Appeal did not deal with this particular issue.  But, your Honours, if we go to page 393 ‑ ‑ ‑

GUMMOW J:   Well what about the text of the actual Tribunal decision, where is that?

GAUDRON ACJ:   Page 344 - - -

MR GROSS:   Yes.

GUMMOW J:   Line 15?

GAUDRON ACJ:   It starts at line 15.

MR GROSS:   The passage quoted by Justice Powell at page 393 starts with the words “In effect” at line 43 and runs through to the paragraph that was quoted by his Honour ‑ ‑ ‑

GUMMOW J:   Forget about Justice Powell for the minute.  Where do you quarrel with the reasoning of the Tribunal in the passages commencing at the bottom of page 339?

MR GROSS:   Your Honours, we have dealt with that inextensively in the written submission, but can I take your Honours through it, if I may?

GUMMOW J:   As throwing up an error of law?

MR GROSS:   Yes.

GUMMOW J:   Yes.

MR GROSS:   Your Honours, having set out the definitional structure, page 340, line 19, we have then got the paragraph which I have already read, which basically says that:

at the time of the appellant’s incapacity and immediately prior to it, the appellant was suffering from a disease in the nature of an underlying anxiety disorder contracted in the course of his employment and to which his employment as a police officer was a contributing factor.

Now we say that the first error of law anyway is ignoring that finding and just concentrating on the competence ability of the exacerbation in isolation.

McHUGH J:   Exactly.  That is what has puzzled me about this case.  Once you find that a disease has been contracted in the course of employment, what does it matter if incapacity later results from a non‑employment trigger?  If it is your employment that has caused your disease and you are walking down the street and you get a shock that causes incapacity which would not happen to another person, then is not that compensable under the Workers Compensation Act?

MR GROSS:   Yes, your Honour.

CALLINAN J:   Particularly when you have a finding, as you have at 341, line 23, that it is precisely the incapacity to which Justice McHugh has just referred that was exacerbated.

MR GROSS:   Yes.

CALLINAN J:   But is it an error of law at 344, line 44, to say that:

the decision to transfer the appellant was not connected in the relevant sense to anything the appellant did in his employment –

in two respects?  First, that that is not the test, whether he is hurt on duty but secondly, it is not his duty to make the decision.  The Commissioner makes the decision.  It was his duty to respond to the decision.

McHUGH J:   Exactly.  It is not the decision.  It is the communication of the decision in requiring him to attend at the Newcastle Police Station and upon Superintendent Cleary to receive that.  Supposing he had got shot while he was there.  Could anybody seriously argue that he was not in the course of his employment?  Suppose he had a heart attack - Cavanagh’s Case and other cases indicating it is clearly in the course of his employment.

CALLINAN J:   That the Commissioner made the decision is really quite irrelevant in that sense.  What is relevant is simply how he dealt with or attempted to deal with the decision.

MR GROSS:   Yes.  Your Honours, the grounds, I think, 1 and 4 in the Court of Appeal were the disease argument but the rest of the argument in the Court of Appeal was this, that in looking at whether the work was in the course of the employment or whether the employment carried a requirement under the definition of “injury” was satisfied, two mistakes were made.  The first mistake was at 344, line 40:

the word “employment” as a contributing factor refers to what the worker does in his employment.

The Tribunal said the contributing factor here was what the employer did, not what the worker did and if he is a passive receptacle of what the employer does it does not come within employment as a contributing factor.

The second reason was even stranger and it was this.  If your Honours go to 344, line 15 and following, and follow if you would, your Honours, the underlined words and what they imply:

The decision to transfer the appellant was not an event which occurred in the course of his employment as a police officer.  A decision was made to transfer a number of police officers, the appellant being one of them, and the making of that decision was not an event in the course of his employment.

What, in effect, is being said is that it was not specific to him.  It was made in relation to him and some others.  Therefore, it was not in the course of his employment because it was in the course of, I suppose, their employment.

And the Tribunal seemed to have been taken by the spectacle that if you had persons being laid off in groups, you could have this unwieldy situation of a number of claims being made, so that what the Tribunal looked for was something which occurred to him, as distinct from happened to him and others.

McHUGH J:   But my understanding – correct me if I am wrong – is that the disease provision in paragraph (b) was intended to cover the whole universe of discourse in relation to disease.  If you had suffered incapacity indirectly from disease, you were covered.  If a disease contracted in the course of the employment was exacerbated by some outside incident and you suffered incapacity, you were still entitled to it because the incapacity results from a disease that was in the course of your employment.  But assuming you have a disease which has nothing to do with your employment, you still have another chance, and that is if the exacerbation of that non-employment disease is contributed to by the employment, you are entitled to incapacity.

MR GROSS:   Yes.

McHUGH J:   The result was, in effect, that if you can link up the employment, either with the disease itself or with the aggravation, you are home and hosed.  That was always my understanding of it.

MR GROSS:   No, your Honour, it does not.

McHUGH J:   No, but if you can sue the policeman, you can sue the State of New South Wales.

MR GROSS:   Yes.

McHUGH J:   You get a verdict against the policeman or the Crown may pay it, but they may not.  There is no legal obligation on them to pay it, is there?

MR GROSS:   It might be argued that there is an implied obligation of indemnity rather akin to contracts of employment for liabilities incurred in the course of your employment.  There is that line of cases.

McHUGH J:   That is the opposite, is it not?  This ‑ ‑ ‑

KIRBY J:   It runs into Enever.

McHUGH J:   Those in the list are in Romford Iceworks in which the employer can sue the employee for a cover.

MR CONTI:   Yes.  It then comes to ‑ ‑ ‑

McHUGH J:   Lister has been overruled in New South Wales by this - - -

GUMMOW J:   It is abolished by statute in New South Wales.

McHUGH J:   Yes.

MR CONTI:   Yes.

McHUGH J:   Anyway, it is a long way removed from this case.

MR CONTI:   It is contentious question.  I just wanted to avoid a situation where it was being assumed that we take the position that they are not employees.

McHUGH J:   Now, this morning I said to you that I did not think Regulation 98 had anything to do with it.  At the moment I have come around to the opposite view, so do you want to talk me out of that?

MR CONTI:   Yes, could I re-encourage your Honour for the afternoon session. Your Honours, the trouble with dealing with the matter in the way your Honour now proposes or suggests in relation to Regulation 98 as against section 186 is that section 186 would seem to have little or no work to do ‑ ‑ ‑

McHUGH J:   Why?

GAUDRON ACJ:   Depends on the construction, does it not?

MR CONTI:   It depends on the construction but my learned friend was pointing to other possible bases upon which that ‑ ‑ ‑

GUMMOW J:   Why do you want to persuade a member of the Bench out of a view in your favour?

MR CONTI:   Yes, I ‑ ‑ ‑

GUMMOW J:   You can just one an order allowing the appeal.

MR CONTI:   I did not quite think I was doing that. I was concerned about the falling between two stools proposal, and Regulation 98, we would submit, is – if in fact Regulation 98 does clearly operate, it must be a situation to which section 186 of the Act is addressed.

I think my learned friend was putting submissions, “Well, maybe section 186 does have work to do because it has work to do in relation to Regulation 99 or Regulation 100”. But if you go to Regulation 99 ‑ ‑ ‑

GAUDRON ACJ:   No, he said 98(2)(b)?

MR GROSS:   Well, we would submit that selecting that narrow zone is arbitrary because such persons probably have the least claim for compensation in terms of exposure to risks as a matter of social policy.

McHUGH J:   But when you are looking at the powers of the Tribunal, as to what it is going to do eventually by its order, is not your client better off if he comes within 98 rather than if he comes under the Workers Compensation Act that 186 only gives them ordinary powers under the Workers Compensation Act?

MR GROSS:   Yes, on one view, it does.

GAUDRON ACJ:   No, there is nothing in 186 to suggest that the powers are limited.  There is not.  If you look to 186, before you make a confession to Justice McHugh, one possible view is that the only question that ever arises either to the Commissioner or the GREAT is whether or not a policeman was hurt on duty.  If he was, leave on full pay.  There is no basis for thinking that 186 imports all the limitations of the Workers Compensation Act into the Commissioner’s powers or the Tribunal’s, you see.

MR GROSS:   Our first position would be that 186 defines the type of determination by the Commissioner which must therefore assume that he is being asked to make and he has made a decision one way or another in relation to that particular category of entitlement.

McHUGH J:   But, let me ask you this:  186, on the surface, gives nothing but a right of appeal against a decision which answers a certain description.

MR GROSS:   Yes.

McHUGH J:   Now, when the case comes before the Tribunal, what source of law does it look to to determine whether or not the police officer is entitled to an entitlement?

MR GROSS: Our first argument would be that the Commissioner, in exercising his general power of management, receives a specific command and indication from section 186 that the relevant criterion is whether the officer was “hurt on duty”.

McHUGH J:   Within the meaning of section 1(2) of the ‑ ‑ ‑

MR GROSS:   Yes, within that, but we are left with the fact that that is a decision he ‑ ‑ ‑

McHUGH J:   But, assuming he has been hurt on duty and you make that within that section, where does his entitlement to any form of compensation come from?  What is the source of that?  What says he is entitled to X dollars instead of X minus one, or no dollars?

MR GROSS:   We would argue that section 186 does do more than provide the procedure. It is a decision of a specified type, the decision to “grant or refuse leave of absence on full pay”, et cetera. So, the Act contemplates, expresses the legislative intent that the Commissioner will be making decisions of that character, or will be asked to make decisions of that character.

GAUDRON ACJ:   Further differences, if you read 186 as impliedly conferring a right, to leave of absence on full pay if you satisfy the definition, that is the beginning and the end of the matter.  If you go back to Regulation 98(2)(a), or just 98(2), and what you are looking at is the Commissioner’s approval.  There seems to be some independent discretion there that has not been analysed thus far.

MR GROSS:   Can I just go to that particular aspect because we would submit that when you read Regulation 98 it is expressed in the language of entitlement although subject to the condition “if the Commissioner so approves”.  Regulation 98(2) has more of the language of command and statutory right than, for example, Regulation 99, because if you go to Regulation 99, it is full of provisions where the officer may “be granted” in (2);  may “be paid” in (3); (4) and (5) are prohibitions; (6) is suitable duties;  (7) is irrelevant; and 100 also starts with “may”.

So that, when you are looking at this particular division, which is the source of sick leave for police officers appointed from 1 January 1995, you would tend to look for something in the nature of a right otherwise an appeal to GREAT under section 186 against a discretion which has no criteria may, in Regulation 99 – it does not seem to be a natural place for GREAT to be exercising its powers and, in any event, when we look at 98 ‑ ‑ ‑

GAUDRON ACJ:   Do you get to GREAT under 99?  It is a claim under the workers compensation ‑ ‑ ‑

MR GROSS:   No. That is the thing. In 99 the unsuccessful person at least has somewhere to go qua the workers compensation because you can go to the Compensation Court. If he gets a determination there he can then, presumably, build upon that for extra payments whereas in Regulation 98 the only place where a losing applicant can go is to GREAT and therefore, it seems natural to treat Regulation 98, if, in fact, it is applicable, as sending you to section 186 of the Act.

GUMMOW J:   What is the significance that 98 requires membership of a superannuation fund and 99 does not?  There must be some scheme in that.

MR GROSS:   Yes, can I give your Honours the background of the scheme because your Honour has asked some questions also about the way in which police officers are excluded from the Workers Compensation Act?  Could I hand up, your Honours, five copies of the relevant legislation?

GAUDRON ACJ:   Of another piece of relevant legislation? 

MR GROSS:   No.  Your Honour, can your Honours go to the last part first.  There is Act No 70 of 1987 and that is the Workers Compensation Act itself and the definition of “worker” - there is an exclusion:

(a) a member of the police force –

and I will ignore for the time being what is in the brackets there and then (a) was then replaced by a new provision by force of Act No 223 of 1987, Workers Compensation (Police Force) Amendment Act and your Honours will see that the new (a) involves an exclusion of:

a member of the Police Force who is a contributor to the Police Superannuation Fund under the Police Regulation (Superannuation) Act -

GAUDRON ACJ:   Does that mean that contrary to what Mr Conti said, there is not a choice.  If you are a pre‑1988 man you go to GREAT and you have no entitlement under the Act and if you are a post‑1988 man, you do have an entitlement.

MR GROSS:   Yes.

GAUDRON ACJ:   So there is, in fact, no election on the part of a pre‑1988 officer?

MR GROSS:   There is no such election provided for, so that there is that clear line drawn that the pre-1988, that is pre-1 April 1988, get, in effect, police super, used to be the old scheme, and go to GREAT and, of course, the situation has changed.  When the fund closed on 1 April 1988, the fund closed by virtue of the Police Regulation (Superannuation) Act and that is in section 1A of that Act, heading:

Closure of Fund to police employed on or after 1 April 1988

1A.(1) This act does not apply to or in respect of a member of the police force who becomes such a member on or after 1 April 1988, except -

And there are a number of exceptions I need not trouble you with. That is why it is natural that if Regulation 98 is the source of the entitlement, one then passes upon such determination pursuant to section 186.

McHUGH J: If Regulation 98 does not govern the entitlements of a police officer in a section 186 appeal, does it mean that 186 is available to any police officer at all, everyone, no matter when employed or whether they are contributors to the Police Superannuation Fund or not? Your argument must lead to that conclusion, must it not?

MR GROSS:   Not necessarily, your Honours. It may well be that the closing words of section 186(1):

caused by that officer being hurt on duty within the meaning of section 1(2) of the Police Regulation (Superannuation) Act 1906.

You are not only sent to that Act to find a definition, but you are sent there because that is the home of the pre-1 April 1988 police officers, so that it may be further confirmation that section 186 is to deal with the Regulation 98 cases.

McHUGH J:   Well, exactly.

MR GROSS:   Your Honours, just a few other things, if I may. There is reference made to section 216 of the Police Service Act at the heading, “Special risk benefit where certain police officers hurt on duty”, that was a provision which was brought in to cover the post‑1988ers; that is, those who did not get the extra superannuation where they have been discharged medically unfit because they are hurt on duty.  If you are hurt on duty and you are medically discharged, you get a very high percentage of your salary.  No such rights attached to those entering the force after 1 April 1988.

So, that discretionary payment the Commissioner made was one of those extra benefits which is part of the continuing process between the union and the Police Service.  Similarly, Regulation 99 which I went to where the Commissioner may make extra payments pending the outcome of the workers’ compensation hearing, that is in the same category of the discretionary payments designed to, I suppose, alleviate hardship but also to redress some of the apparent inequality between the position of the former group and the latter group.  There are just two remaining matters I would like to deal with.  On the question of actual execution of duty, I appreciate I did not put an awful lot of submissions because of the view being entertained on Regulation 98, but we raise in our written submissions paragraphs 5.5 and 5.6 the argument that the words “actual execution” are not in fact restrictive but rather they are expansive, so that you are in the actual execution of duty when you are rostered for duty.

You are also in the actual execution of duty when, although not rostered for duty a superior officer or a particular occasion calls into play your general continuing obligations as an officer and then you move from your private sphere into doing police work, arresting someone or dealing with a situation.  So, actual execution is intended to cover both situations.  We refer in the submissions to Regulation 13 which highlights this particular characterisation of a police officer’s duty, either when rostered or outside roster.  Regulation 13, I will just turn up - heading:

Performance of duties by police officers
13. A police officer is required:
(a) to serve wherever the officer is duly directed; and
(b) to perform such policy duty as may be duly directed, whether or not during the officer’s rostered hours of duty.

We would submit that perhaps Regulation 13 is an attempt to pick up both aspects of when an officer can be required to perform work. 

The final thing I would like to deal with is the submissions my learned friend made in relation to the concept of coping with the effects of the disease so that in some way you need to have a separate compensable exacerbation.

I will not make further submissions on the law on that, but can I, for your Honours’ assistance, just point to how Dr Lambeth and Dr Hindley described that process of the coping mechanism being there and breaking down. 

GAUDRON ACJ:   We do not need to go into the facts.

McHUGH J:   We cannot go into the evidence.  We are bound by the findings of fact or lack of them.

MR GROSS:   Yes.

GAUDRON ACJ:   But there is a question, is there not, which is this:  regardless of whether one looks to regulation or to the definition of “hurt on duty” which picks up the Workers Compensation Act, if you win on the first of your arguments, that is pre‑existing work‑related condition, or disease, why does this matter go back to the Tribunal?

MR GROSS:   We would submit, if that is the case it requires no further determinations by any lower ‑ ‑ ‑

GUMMOW J:   Section 56 of the Tribunal’s Act empowered the Supreme Court after the remittal to make such order as ‑ ‑ ‑

MR GROSS:   It seems to contemplate it going back somewhere to be dealt with in the court ‑ ‑ ‑

GUMMOW J:   Not necessarily.

McHUGH J:   We can make the orders the Supreme Court could have made.

MR GROSS:   Yes.

GAUDRON ACJ:   And what order could that have made, apart from allowing the appeal?

McHUGH J:   Make such order in relation to the appeal as it deems fit.

GAUDRON ACJ:   Does the Tribunal usually just allow the appeal in circumstances like this, or does it direct the Commissioner to pay, and that may depend on “if so approves”.

MR GROSS:   Could I inquire about the practice, if I may, and then I will make my submissions.  The normal course is that the Tribunal allows the appeal and makes the finding that the relevant absence was one of the specified kind.

GUMMOW J:   But no more.

MR GROSS:   But no more.

GUMMOW J:   It does not make any compulsive order.

MR GROSS:   No, it does not.  It does not direct the Commissioner to do anything, and in our submission, this Court is in the same position.

KIRBY J:   What about costs?

MR CONTI:    The practice is to…..the Commission if the appeal is allowed and the Commissioner acts on it.

KIRBY J:   What about costs?  Are there limitations in the GREAT Tribunal as to costs or do we make any orders as to costs or do they all follow the event.

MR CONTI:    I do not think the Tribunal makes costs.

KIRBY J:   It makes orders for costs, does it?

MR CONTI:    No, it does not.

KIRBY J:   It does not.  So, the only costs that would be ordered would be those in this Court and in the Court of Appeal.

MR GROSS:   Yes, that is so.  There are no costs in GREAT either way.

GAUDRON ACJ:   Thank you, Mr Gross.  Mr Conti, I regret to say we are not finished with you.

CALLINAN J:   This is my fault, Mr Conti, I wanted to ask you a question.  If I could draw your attention to your table on page 10 of your submissions, you say in the second box there that “The only findings made by the Tribunal” were, and you refer to two matters.  I do not, with respect, think that is right.  If one looks at the different wording from time to time and the way in which the Tribunal dealt with what the appellant was saying, but leaving that aside for present purposes, was any evidence in contradiction of the appellant’s claims with respect to symptoms and how each event affected him, given?  Was any contradictory evidence given?

MR CONTI:    There were certainly doctors called by both parties and it was Dr White who gave the evidence which is referred to in the Tribunal’s judgment which I will get you the reference.

CALLINAN J:   As to what the appellant himself complained of from time to time, there was no evidence that he did not suffer those symptoms or complaints?

MR CONTI:   There was no contradictory evidence led in relation to any of the eight instances.  It was merely noted that there was no time lost from work, except I think in relation to one of them.

CALLINAN J:   Yes, thank you.

GAUDRON ACJ:   Before you resume your seat, you might like to consider what Mr Gross said about the effect of the Workers Compensation(Police Force) Amendment Act 1987 which I note took effect on April Fools’ Day 1988, and I gather that is when this distinction arose. You might like to comment on what he says to the effect of that in writing within seven days, if you would like.

MR CONTI:   Yes, certainly.

GAUDRON ACJ:   Do you wish raise anything as to what should happen in the event that Mr Gross succeeds on his first argument, that is, that condition is just simply an infirmity, if you like, that was there all along, the order that should be made?  Do you seek to have the matter ultimately remitted to the Tribunal, or are you content for this Court to make the order that the Tribunal could have made, if he succeeds on his first part of it?

MR CONTI:   Can I just get instructions, because I really do not know how this Tribunal works.  The police officer who appeared in the Tribunal has informed me that this Court can make, as it were, an order or a judgment as the Tribunal could have.

GAUDRON ACJ:   Thank you.

MR CONTI:   Not that I want to throw that burden on you.  We are not asking you to take on that burden, but obviously the Court ‑ ‑ ‑

GAUDRON ACJ:   No, there are costs involved.

MR CONTI:   Obviously if the matter was to be remitted that is one matter, but certainly so far as the Police Commissioner is concerned, he acts on the basis of an appeal being allowed without needing any consequential referrals.

GAUDRON ACJ:   Yes, thank you.  The Court will consider its decision in this matter.

AT 3.50 PM THE MATTER WAS ADJOURNED