Carroll v Police Medical Board

[1999] NSWSC 914

CITATION:	Carroll v Police Medical Board & Ors [1999] NSWSC 914
CURRENT JURISDICTION:	Common Law Administrative Law List
FILE NUMBER(S):	30011/1991
HEARING DATE(S):	6 September 1999
JUDGMENT DATE:	10 September 1999
PARTIES :	George James Carroll (Plaintiff) v Police Medical Board (First Defendant) Michael Gordon Pasfield (Second Defendant) John Morgan Orr (Third Defendant) Commissioner of Police (Fourth Defendant) SAS Trustee Corporation (Fifth Defendant)
JUDGMENT OF:	Master Malpass

COUNSEL :	Mr J de Meyrick (Plaintiff) N/A (Defendants 1 - 3) Mr G Willis (Fourth Defendant) Miss E Wilkins (Fifth Defendant)
SOLICITORS:	Taylor & Scott (Plaintiff) No appearance of First Defendant I V Knight - Crown Solicitor - Submitting appearance (Second and Third Defendants) MR F Hutchison - Manager Legal Services - NSW Police Service (Fourth Defendant) Mr B Matthews - SAS Trustee Corporation (Fifth Defendant)
CATCHWORDS:	administrative decision; presumption that it is lawful until set aside; discretion to make declaration.
ACTS CITED:	Police Regulation (Superannuation) Act 1906, s 10B. Superannuation Administration Act 1987, s 4.
CASES CITED:	Barnes v Commissioner of Police. Hoffman - La Roche & Co A G & Ors v Secretary of State for Trade & Industry (1975) AC 295. R v Panel on Takeovers and Mergers (1987) QB 815). Smith v Police Medical Board.
DECISION:	See paragraphs 35-36.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRTIVE LAW LIST

MASTER MALPASS

FRIDAY 10 SEPTEMBER 1999

30011/1991 GEORGE JAMES CARROLL v POLICE MEDICAL BOARD & ORS

JUDGMENT


1   This matter has had a very long and unfortunate history. The plaintiff was a member of the Police Force. On 24 October 1987 he was discharged from service as being medically unfit. Since that time, he has been seeking to establish what may be described as an entitlement to a hurt on duty pension.

2   These proceedings were commenced in 1991. The proceedings were specially fixed for a hearing on 6 September 1999. The relief claimed by the plaintiff is as set forth in the Third Amended Summons which was filed in court on that day.

3   There are five named defendants. The court has been informed that the first defendant may not be a legal entity and that the second and third defendants have adopted a submitting role to the relief now sought. Counsel have appeared on behalf of the fourth and fifth defendants. The fifth defendant was added as a party following orders made in December 1998.

4   The evidence consists of two affidavits sworn by the plaintiff, one affidavit sworn by his solicitor (Mr Liddy) and certain tendered documentation.

5   The plaintiff joined the Police Force in 1977. In 1979 he suffered back injury in a motor vehicle accident. Since that time, there has been a history of back problems. There have been other incidents in which injury has been sustained (including back injury). His back problems caused him to have time off from work. Largely, he ceased performing police duties in 1985. By 1986 his specialist had expressed the opinion that he should be discharged from the Police Force on the ground of disability. Later in 1986, he suffered an emotional break-down when his wife left him.

6   He was seen by Dr Tarrant. Initially, Dr Tarrant formed the view that the plaintiff was suffering from a personality disorder. After seeing the plaintiff on other occasions, he retracted that view.

7   On 11 December 1986, the plaintiff was first examined by the Police Medical Board (PMB). PMB took the view that it was not satisfied that he was permanently incapable of discharging the duties of his office. Following further back problems, a further application was made to PMB. He received correspondence from the Police Department which said that the Department had accepted his back condition as being a hurt on duty injury and told him that his medical discharge would take effect on 24 October 1987. He appeared before doctors Swain and Orr. Apparently they took the view that there were not sufficient orthopaedic grounds to consider him permanently unfit to perform the duties of his office. A psychiatric assessment was recommended. He attended upon Dr Pasfield. On 27 July 1987, a certificate was issued. There was a finding that he was suffering from a personality disorder. PMB certified that his infirmity of body or mind rendered him permanently incapable of discharging the duties of his office. Thereafter, the Acting Police Commissioner decided that the infirmity “personality disorder” was not caused by an injury on duty.

8   An appeal against the decision of the Acting Police Commissioner was brought in the Compensation Court. The appeal was unsuccessful. In December 1989 it was dismissed on the ground of lack of jurisdiction.

9   Since the making of these decisions, it appears that further material has become available to the plaintiff which reinforces the view that his incapacity is due to his back condition.

10   After these proceedings were commenced in 1991, steps were then taken for the resolving of the problem by non-curial measures. The solicitors for the plaintiff wrote to the State Authorities Superannuation Board (the Board) seeking a review of the PMB decision.

11   By letter dated 18 October 1991, the Board responded to that plea for assistance. The letter contained inter alia the following:-
“The Board takes the view that it should assist your client as to the procedure available to him so as to prevent him suffering any injustice because the Police Medical Board no longer has relevant functions, those having been vested in the State Authorities Superannuation Board.
It seems that if the events which have occurred had all occurred subsequently to 1st April 1988 when the new Board first received its powers, if it was felt that an error might have been made in the decision reached under section 10B(1), Police Regulation (Superannuation) Act, when the applicant for the certificate was a member of the Police Force, it would be open to the Board to reconsider the matter if the now ex-member of the Police Force made an application under subsection (2) of section 10B. The position would be the same if the medical condition of the ex-member had substantially changed since his examination for a certificate under section 10B(1).
Section 10B(1) is thus open to be used by the Board for a reconsideration of the ex-member’s position, provided that the former member notified the Commissioner of Police before his resignation or retirement and within six months of receiving the injury which has caused his infirmity of body or mind, of that injury. Now the notification has to be in a prescribed form, but this was not the position at the time your client claims he received his injury. Fundamentally therefore, the question on reconsideration would be was your client at the time of his resignation or retirement incapable from infirmity of body or mind of discharging the duties of his office? Your client would appear to claim that his incapacity was orthopaedic, and a result of being hurt on duty, whereas the Police Medical Board decided that the incapacity was an infirmity of mind.
It may be that the words in section 10B(2), namely, ‘resigned or retired’ in their ordinary meaning would not cover your client, but lest there by any doubt about this section 10, which is the operative section, defines ‘retired’ to include discharged under sections 7 or 14. Your client was discharged under section 14. If this is the present position, the fact that your client made his original application under the Act prior to the amendments which commenced on 1st April 1988 would not seem to deprive him of his rights under section 10B(2).
Under these circumstances it appears that your client has a right to make an application under section 10B(2) and it is open to the present Board to consider it; if the Board’s decision is against your client he would have a right of appeal to the Industrial Commission.
On the other hand I do not think that the Board has any power to reconsider this matter under section 10B(1) because it is not given power to reconsider the decisions of the Police Medical Board given before 1st April 1988, and there might be an argument as to whether it has power to reconsider its own decisions, although I think it can.
Further, it would appear that a section 10B(1) certificate would not be of much use to your client now, because he has already been discharged, whereas a section 10B(2) certificate would, if your client is right in his claim, remedy the situation.”

It appears that this communication was based on advice received from senior counsel.


12   The plaintiff took up this invitation and brought an Application for Certificate of Incapacity. The application was dealt with by the Police Superannuation Advisory Committee (PSAC). The Board had delegated its functions under s 10B to PSAC. It seems that on 16 December 1992 PSAC gave a certificate in terms of s 10B (2). It certified that he was incapable and specified the infirmity as “spinal injury to the lower back”. This appears to have been a fresh determination (as opposed to a review of what had been done by PMB).

13   An application was then made to the Police Commissioner for a Hurt On Duty Certificate. For some years, it declined to issue a certificate. It has been said that this course was taken on the basis of a view that PSAC did not have power to review a decision of PMB and no jurisdiction to make any determination in the case of the plaintiff.

14   It appears that there was some further delay whilst the parties abided the result of two other cases in this Court. The first was Barnes v Commissioner of Police . The second was Smith v Police Medical Board . Unfortunately, the decisions delivered in those cases were not of great assistance in resolving the present problem.

15   In December 1998, there was a change of stance by the Police Commissioner. By then he had adopted the view that he was not entitled to question the validity of the certificate of PSAC and a delegate certified pursuant to s 10B (3) (a) that the specified infirmity had been caused by the plaintiff being hurt on duty.

16   The fifth defendant has refused to act on the certificates. The stance taken by it is expressed in Exhibit 1. The certificate of PSAC (its own delegate) is regarded as being ineffective and there is said to be an impediment to payment of pension to the plaintiff. During the hearing, its counsel expressed the view that the plaintiff needs to go back to PMB as it is the only body empowered under legislation to make the certification in this case. This change of stance has been taken it is said because of discovery in about 1993 of error in the position previously adopted by the Board (due to the overlooking of certain savings and transitional provisions which had the effect of depriving PSAC of jurisdiction).

17   As all attempts at non-curial resolution have failed, the plaintiff has returned to court to prosecute these 1991 proceedings. The hearing took place on 6 September 1999.

18   The fourth and fifth defendants present as being sympathetic to the plaintiff, but draw attention to what they say may be legal difficulties obstructing a successful result in the present proceedings. Both contend that an avenue to relief remains open to him (to go back to PMB).

19   At this stage, it is convenient to refer briefly to some aspects of the relevant legislation. For present purposes, it is not necessary to look to the detail of that legislation and the changes made thereto.

20   At the time of his discharge, the Police Regulation (Superannuation) Act 1906 (the 1906 Act) was in force. Police Officers were members of the Police Superannuation Fund which was controlled by the Police Superannuation Board. PMB was established under this Act. It then had functions in relation to the granting of an annual superannuation allowance under s 10B. For present purposes, broadly speaking s 10B imposed two requirements which had to be met to enable the granting of an annual superannuation allowance. Firstly, there had to be a certificate from PMB to the effect that PMB (having regard to medical advice on the condition and fitness for employment of a member) had certified the member to be incapable, from a specified infirmity of body or mind, of discharging the duties of his office. Secondly, there had to be a favourable decision from the Commissioner of Police (he was required to decide whether or not the infirmity to which the certificate related was caused by the member being hurt on duty).

21   The Superannuation Administration Act 1987 came into force on 1 April 1988. It constituted the Board which was charged with the function of administering and managing certain superannuation schemes, (including the function conferred or imposed by or under the 1906 Act). The functions of PMB under s 10B were given to the Board (see The Police Regulation (Superannuation) Amendment Act 1987 (the 1987 Act)). The 1987 Act contains certain savings and transitional provisions (s 4). They provide that the amendments made by the Act inter alia to s 10B do not apply to or in respect of a member who inter alia retired or was discharged before the commencement of those amendments (1 April 1988).

22   The plaintiff asks the court to set aside the PMB certificate. This will only be of assistance to the plaintiff should he wish to make further application to PMB. The plaintiff has not shown much enthusiasm for pursuing that possible avenue. It may be that further application can still be made without the existing certificate being set aside. I have reservations as to whether or not there is presently material before the court which would justify the setting aside of that certificate. In any event, it is not necessary to further consider that matter and I put it aside for present purposes.

23   It seems to be common ground that the fourth defendant does not have any locus standi to challenge the PSAC certificate and it does not purport to do so. It takes the stance that it has performed the only function imposed upon it by the legislation.

24   The fifth defendant has placed itself in an invidious position. The relevant decision was made by its delegate. Apart from protesting its concern about the effectiveness of the certificate of its own delegate, the fifth defendant has not taken any steps to either disturb the decision or have the certificate set aside. Although it brings no Cross-claim in these proceedings and has made no other claim for relief, it continues to refuse to make payment of the pension to the plaintiff.

25   It may be added that the fifth defendant has a power to compromise or settle any claim made against it (s 25). Despite its protestations of willingness to assist the plaintiff, it does not appear that there has been any attempt to exercise this power. I observe that it has persisted with its approach to the problem, in circumstances where it had already satisfied itself as to the plaintiff’s incapacity and infirmity. An exercise of the power may have produced an expeditious resolution of the problem.

26   The question of want of jurisdiction has been the product of divergent views over the years. There has been erosion of the distinction between jurisdictional and non-jurisdictional errors. Whilst these matters have not been fully argued, my attention has been drawn to authority for the view that as the law presently stands official administrative decisions are presumed to be lawful, unless and until a court of competent jurisdiction declares them unlawful (de Smith, Woolf & Jowell Judicial Review of Administrative Action Fifth Edition 5 - 048 and the cases cited therein). It does not seem to be in dispute that this authority correctly states the present position.

27   The cases suggest that the presumption prevails in the absence of rebuttal and that it cannot be rebutted except by a party to legal proceedings in a court of competent jurisdiction who has locus standi to challenge its status. Further, they suggest that administrative decisions, however wrong they may be (including however lacking in jurisdiction they may be) subsist and remain fully effective unless and until they are set aside by a court of competent jurisdiction. Also, they suggest that the court has a discretion to refuse to set them aside (even where the decision is regarded as ultra vires). See inter alia Hoffman - La Roche & Co A G & Ors v Secretary of State for Trade & Industry (1975) AC 295; R v Panel on Takeovers and Mergers (1987) QB 815 at 840.

28   The question of the locus standi of the fifth defendant was a matter that was really not addressed. The fifth defendant did not put any argument to the effect that the presumption had been rebutted. Largely, it simply brought the court’s attention to the savings and transitional provisions.

29   However, for completeness, it may be helpful if I do add some further comment. If a submission of rebuttal had been made, the particular circumstances of this case would have led me to the view that it be rejected.

30   Declaratory relief is discretionary. If the court had been asked to declare the decision to be unlawful, the court would have been required to look at the circumstances of this case and have regard to what would best serve the interests of justice. Apart from questions relevant to the parties themselves, there are also considerations of administrative inconvenience. The relevant considerations in this case would have led to the view that the application be refused.

31   In the present case, there was an assumption of jurisdiction by a delegate of the fifth defendant which is a body that has been empowered since 1988 to make decisions of the nature contemplated by s 10B. The subject decision was made as long ago as 1992. The plaintiff’s application for the decision was made at the invitation of the fifth defendant, and he acted on the representation that it had the jurisdiction to entertain the application. The decision has been acted upon by both the plaintiff and the fourth defendant. It has remained on foot for about seven years. There has been no action taken to disturb it or have it declared unlawful.

32   If the decision was set aside, the plaintiff would be left in the position where he would probably have to start again. He has already suffered many years of hardship. It may be, that he would have to return to PMB and seek a favourable decision. This body may have to be reconstituted for that purpose. This would occasion further delay and expense (including expense to taxpayers).

33   There would be a lack of utility in setting aside the decision. There appears to be no real dispute that because of his back problems (the specified infirmity) the plaintiff is incapable of discharging the duties of his office. There is no suggestion of non-jurisdictional error. The fifth defendant presents as being ready to pay the pension if what it sees as the legal problems are overcome.

34   The plaintiff is the only party claiming relief in these proceedings. He seeks to have the decision declared to be a lawful one. Whilst the decision subsists and remains effective, the granting of such relief will resolve the present difficulties.

35   In the circumstances of this case, I consider that the court should exercise its discretion to declare that the decision is a lawful one and I propose to make the appropriate declaration. It may be that this is a case where Short Minutes should be prepared in consultation by the parties to enable the framing of relief which will set up the mechanism which enables the parties to give effect to a state of affairs where the plaintiff is granted the annual superannuation allowance.

36   There remains the question of costs. It is not a question that has been addressed in argument. It may be a question of some complexity which can be resolved between the parties. Without having had the benefit of argument, my preliminary view would be that the fifth defendant should at least bear part of the costs.
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Last Modified: 09/10/1999