Day v SAS Trustee Corporation

[2020] NSWDC 381

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Day v SAS Trustee Corporation [2020] NSWDC 381

Hearing dates:

6-9 July 2020

Date of orders:

14 July 2020

Decision date:

14 July 2020

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

Confirm the decision of the SASTC by its delegate, PSAC.

Catchwords:

POLICE SUPERANNUATION

Whether P suffering from the infirmity claimed (chronic adjustment disorder with mixed anxiety and depressive mood) “at the time of the member’s resignation” within the meaning of s10B(2)(b) of the Police Regulation (Superannuation) Act 1906. P a member of NSW Police from 30 June 1980 until his resignation effective on 26 September 1998. P qualified as a police prosecutor in 1984 and at the time of his resignation was a sergeant/police prosecutor. P last worked in NSW Police immediately prior to 21 August 1998, when he was certified unfit due to “acute anxiety and depressive reaction”. P submitted his resignation on 4 September 1998. In November 1998 P commenced working as a solicitor with the Aboriginal Legal Service in Taree. In May 2000 he was promoted to Solicitor Advocate/Office Manager at Newcastle. On 23 July 2001 he became a Local Court Magistrate but resigned his commission on 27 July 2002, after a short, unhappy career on the Bench. Since 2003, P has been working as a solicitor in various practices, specialising in criminal law. Court was not satisfied that P was disabled for work as a police prosecutor after the end of 1998.

Held: the term “at the time of the member’s resignation” does not mean on his last day of service or the day after that. The words must be construed in the context of a superannuation scheme. Semble, the decision maker must be satisfied both at the time of certification and at the time of resignation that the member of the scheme was suffering from the infirmity of mind (or body) alleged. The infirmity must be indefinite at the time of resignation, not temporary or transient, Dicta of IRC in Court Session adopted.

Legislation Cited:

Drug Misuse and Trafficking Act 1985

Evidence Act 1995

Judicial Officers Act 1986

Police Regulation (Superannuation) Act 1906

Cases Cited:

Johnson v SAS Trustee Corporation [2019] NSWDC 925

SASTC v Daykin [2002] NSWIRComm 124

SASTC v Hazlewood [2009] NSWIRComm 157

SASTC v Rossetti [2018] NSWCA 68

Woollard v SASTC [2012] NSWIRComm 51

Texts Cited:

Publius Terentius Afer, Phormio, 161BC

Category:

Principal judgment

Parties:

Roland Scott Day (Plaintiff)
SAS Trustee Corporation (Defendant)

Representation:

Plaintiff:
Counsel - P. Morris S.C. & M. Hammond
Solicitor - S. Gray (Cardillo Gray Partners)

Defendant:
Counsel - T. Ower
Solicitor - L. Doyle (SASTC)

File Number(s):

RJ00142/19

Publication restriction:

Nil.

Judgment

1. HIS HONOUR: The plaintiff, Roland Scott Day, is a former sergeant of police. He was attested as a probationary constable of police on 30 June 1980, and there upon became a contributor to the Police Superannuation Fund established by the Police Regulation (Superannuation) Act 1906 (“the Act”). On 26 August 1998, the plaintiff prepared a letter of resignation. That is exhibit H. That was submitted to the NSW Police on 4 September 1998. The plaintiff requested that the effective date of his resignation be 26 September 1998. The plaintiff’s resignation was accepted with effect from that date. At the time that his resignation came into effect, the plaintiff had been a contributor to the Police Superannuation Fund for 18 years, two months and 28 days.

2. On 4 June 2008, the plaintiff applied for a Medical Discharge Benefit as a former member of the police superannuation fund pursuant to 10B(2) of the Act. The plaintiff’s application was considered by the Police Superannuation Advisory Committee (PSAC) on 30 April 2009. The committee declined to certify pursuant to 10B(2) of the Act that the plaintiff was incapable from a specified infirmity of body or mind of discharging the duties of his office “due to insufficient medical evidence”.

3. A formal notice to that effect was sent by registered mail to the plaintiff’s then solicitors, Messrs Baker & Edmunds, on 7 April 2009. That letter contained this erroneous advice;

“Your client may dispute this decision under s 67 of the Superannuation Administration Act 1996. If he wishes to dispute the corporations decision, please advise this office in writing, and we will then refer his dispute to the corporation’s Disputes Committee, along with any other relevant material that you may want to consider.”

On 9 June 2009, Messrs Baker & Edmunds requested that the matter be referred to the Disputes Committee “for reconsideration”.

4. In order to pursue such a reconsideration, the defendant arranged to obtain written reports from Dr Antony Christie, and Dr Joseph Dunn, as well as qualifying Dr Peter Snowdon, psychiatrist, to examine and report on the plaintiff’s condition. After further correspondence between the defendant and Messrs Baker & Edmunds on 27 January 2010 the defendant wrote this to the plaintiff’s then solicitors;

“I have to advise that it is hard to see how the dispute could be determined in your client’s favour. Should your client still wish to continue this dispute, please let me know within 21 days of this letter, and whether you will provide further medical evidence to support his claim.”

5. The plaintiff’s claim was then being handled by Mr Tom Edmunds. Mr Edmunds retired from practice because of a terminal illness, and his death occurred shortly after his retirement. Mr Stuart Gray, a solicitor then practising with Harris Wheeler, took over the plaintiff’s claim. There was then desultory correspondence between the defendant and Mr Gray which was, happily for the plaintiff, affected by the decision of the Court of Appeal in SASTC v Rossetti [2018] NSWCA 68. The Court of Appeal determined that the appeal path which the defendant had advised Mr Edmunds back in 2009 was never the appropriate appeal path and, rather than going to the Disputes Committee and then the Industrial Relations Commission in Court Session, the right of appeal was always to this Court. On 14 January 2019, the defendant wrote appropriately to Mr Gray, now a partner of Cardillo Gray, advising the plaintiff of his right to dispute the decision of PSAC, made on 30 April 2009, by making an application to this court. Accordingly, the plaintiff filed a statement of claim on 2 July 2019.

6. The hearing of this case commenced on Monday 6 July 2020. The hearing was completed on Thursday 9 July 2020 and I told the parties I would give judgment last Friday. Unfortunately I was unable to do so because in my overnight reading I ascertained a major factual discrepancy which caused me need to reread a lot of the evidence. Hence I give this judgment today. I am now deciding a matter which ought to have come before me in 2009. Allowing for the normal lag between the filing of a statement of claim and the giving of a hearing date, I ought to have heard this matter in 2010, a decade ago, about the circumstances surrounding the plaintiff's resignation from the NSW Police which occurred almost 22 years ago. Necessarily, the evidence before me is hardly satisfactory. People have deposed to events occurring many years ago going back over up to a quarter of a century. Much evidence of a documentary nature either has been destroyed, or cannot be found, or was not the subject of a subpoena to produce documents.

Plaintiff’s background

7. The plaintiff was born in April 1961 at Liverpool Hospital. He is currently 59 years old. In his affidavit, which was affirmed on 25 May 2020, he told me that he grew up on a dairy farm with quite a large “nuclear” family and the involvement of other relatives in the running of the farm. He told me that he helped his grandparents, his parents, and an aunt on the farm from a young age. I understand that this dairy farm was at Minto. Later the farm was sold off, although the two houses which had been built on the farm remained in the ownership of the plaintiff's wider family. Before working on the farm, the plaintiff's father had been an engineer in the Royal Australian Engineers. The plaintiff's father's advice to him was to apply for officer training by becoming a cadet at the Duntroon Military College. The plaintiff attended a local primary school and the Ingleburn High School. He was a good scholar. In 1978 he commenced to attend the Royal Military College at Duntroon as a cadet officer. He left Duntroon, however, after a period of nine to 10 months because, he said in his affidavit that he, "realised it was not the right career choice," for him. The plaintiff has given at least one history of undergoing bastardisation when he was a cadet officer. Before going to Duntroon, the plaintiff had expressed an interest in joining the New South Wales Police. After leaving Duntroon, he worked as a forklift operator and despatch clerk whilst waiting on advice from NSW Police as to whether he would be accepted into the Force. His application was successful and in 1980, he commenced at the Redfern Police Academy. That led to his attestation as a probationary constable of police on 30 June 1980.

8. He was then sent to Liverpool Police Station, at which police station he worked, or at one of its substations, namely the Green Valley Police Station. He appears to have worked at Green Valley for a relatively short time. He was then “headhunted” into joining the Police Prosecution Branch. The plaintiff was interviewed by Dr Jeff Bertucen, a consultant psychiatrist, on 16 August 2016. The plaintiff gave this history to Dr Bertucen,

“in 1982 he stated that he was ‘headhunted’ into joining the Prosecutor service. He initially declined, but then found himself faced with the prospect of a transfer to Moree in remote outback New South Wales. He feels in retrospect that this was a deliberate move to either coerce him to join the prosecutor’s department or punish him for declining. Mr Day stated that he had another meeting with the Police Prosecutor’s Department, as a result of which the transfer to Moree ‘evaporated instantly’.”

That, like many histories, appears to have been a reconstruction based upon a negative view of the NSW Police. I accept that when faced with the prospect of joining the Police Prosecutor’s Branch, or being transferred to Moree, one would accept the former rather than the latter, which essentially is the history the plaintiff gave in his affidavit. However, if the Police Force wished to “punish” someone, they would transfer that person to Moree without giving him a chance to reconsider his attitude.

9. In his affidavit, the plaintiff told me that he began his training as a police prosecutor not in 1982, but in 1981. He told me that that training was carried out in the Sydney metropolitan area, and as I understand it, he worked for some time at Police Headquarters when that building was in College Street, Sydney. In 1984, the plaintiff received a Distinction pass in the Police Prosecutor’s Training Certificate Course.

Work at Dubbo

10. In or around 1988, the plaintiff was transferred from the Sydney metropolitan area to Dubbo to work on the Bourke and Brewarrina Magistrate’s Circuit every second week, and on alternative weeks, he worked as a prosecutor in Dubbo. Paragraph 22 of the plaintiff’s affidavit, which is exhibit B is this,

“The police work I performed in that area was local court work and Coroner assist work. I also appeared for many Government departments such as Fisheries, National Parks, Local Council and towards the end of the time, the DPP because the DPP did not service the Bourke Brewarrina region. A lot of that work involved horrendous domestic violence amongst the indigenous population, including murder allegations, assaults, driving offences and drug offences.”

11. The next paragraph of the plaintiff’s affidavit tells me in detail how he came to hate the effect of what we now routinely call domestic violence. Whilst working at Dubbo, the plaintiff met the lady who became his first wife, Belinda. At the time she was 16, and the plaintiff would have been 28 or 29 years old.

Work at Lismore

12. On 27 April 1991, when the plaintiff was 30 years old, he transferred to Lismore to work on the north coast Magistrates Circuit as a senior prosecuting officer and managing officer. The following two paragraphs of his affidavit are these;

“26. Again, the work I did was a mixture of serious assaults, driving offences and drugs. There was a substantial Domestic Violence issues that I feel was directly associated with cannabis/alcohol abuse. The cannabis offences were far more frequent on the north coast. There was a lot of cultivation of cannabis on the north coast.

27. The drug offences mainly involved cannabis possession, cultivation, use or supply. with respect to cannabis use, I initially held the view that the legislature had prohibited probably for a good reason, and since it was against the law, and people were committing offences by using, growing, possessing or using it, I would prosecute the cases. I never used it and did not associate with people who did.”

There then follow three lengthy paragraphs in which he states his opposition to the use of illegal drugs. Paragraph [31] of his affidavit is this;

“I also came to form the opinion that the cash generated by drugs was potentially corruptive within the Police Force. This was always well hidden, but could take many different forms.”

However that opinion appears to have been formed by the plaintiff because of his experiences from approximately 1996 to 1998.

13. The plaintiff attended, when based in Lismore, at Tweed Heads, Murwillumbah, Mullumbimby, Byron Bay, Ballina, Maclean, Grafton, Kyogle, Casino, Coffs Harbour, Bellingen and Macksville as well as Lismore. He clearly spent a great deal of his time on circuit.

14. Between [36] and [52] of his affidavit, the plaintiff spent some length explaining to me his frustrations with the quality of the police briefs that he was given, and with what he believed to be the incompetence of many of the police who prepared briefs, or were potential witnesses in a prosecution. He expressed views that he felt frustrated by losing cases that were “perfectly winnable”.

15. In October 1995 he was awarded the National Medal for service to the community. After qualifying as a police prosecutor the plaintiff decided to study the law through the Legal Practitioners Admission Board. That led to his being admitted to practice on 20 December 1996. The plaintiff said this;

“This law course made me much better at prosecuting. I understood issues between civil and criminal far better after I had completed subjects such as contracts, torts and Equity. This was especially helpful in Fraud cases.”

Plaintiff’s first wife

16. One of the principal witnesses to corroborate many of the plaintiff’s allegations is his first wife, Belinda. It is necessary to understand a little about the nature of their relationship. Belinda made a statement on 12 October 2007. That statement was made to a private investigator retained by the late Mr Tom Edmunds. That statement contains this matter;

“4. In 1991 Roland had the opportunity to apply for position in Lismore working as a Police Prosecutor on the north coast circuit. I knew he was happy in Dubbo, and he enjoyed the lifestyle, but I believed he was looking for new challenges. In April 1991, he left Dubbo to take up the new position in Lismore.

5. I was realistic and I knew that Roland would more than likely meet other women and form relationships when he moved to Lismore. Even so, the bond that we had was very real, and we kept in touch by telephone and we would visit each other occasionally. Later that year, when I had finished my higher school certificate, I moved to Lismore so I could be closer to Roland.

6. He was still relatively new in the town, but in only a few months, Roland had settled in and developed a great circle of friends that I eventually met. Roland was confident and outgoing, but more than anything, he was a fun person and people naturally gravitated towards him. A lot of his mates were police colleagues, and at the weekends we were always out and about doing things like boating, or at barbeques with friends. We had great holidays together in Australia in places like Fraser Island and camping in the outback [at] Broken Hill. One year we also went skiing in New Zealand.

7. Over the next few years, our relationship grew, and then in about 1994, Roland asked me to move in with him. We lived together for almost four years before we eventually married in 1998. Roland and I had a deep and loving connection and I believed I was marrying my best friend. Our life together was great. We both saw a happy future ahead. We lived in our home, and we had no money worries. Roland had a great job, and I know he saw the Police as a long term career.”

In 1996, the plaintiff purchased a property on Mountainview Drive at Goonellabah, a suburb of Lismore on the heights above that city. He bought the house in his own name, rather than in common, or as a joint tenant with Belinda.

Alleged Stressors

17. There were two major stressors that the plaintiff told me of. The first was his relationship with a senior police prosecutor who was based at Coffs Harbour, and who has been given the pseudonym, Mike. Commencing in [60] of his affidavit, the plaintiff said this;

“We started out as friends as I knew him from my time as a Court constable many years before at Liverpool. I found him to be a very bright prosecutor with his work. I had no doubt in his competence and capacity to perform his duties. He was a very good prosecutor, and I feel he was also somewhat sympathetic to the issues I was continually raising about the standard of briefs.

61. However, he had an aspect to his personality that I found particularly difficult to deal with. He was a man who seemed substantially focused almost entirely on sex. When he first spoke about it, I thought it was a bit funny, as my view was that it was his private life, so what he got up to was his business. If he spoke to me privately, I was not so worried, but if I heard him speaking to others, I cringed at the things he would discuss, especially in the presence of women whom I thought he naïvely was trying to impress, and secondly, if he was saying it in front of me, then he was clearly uninhibited with his sharing of his sexual prowess.

62. The problem was that, over time, almost every conversation he had that I observed contained sexual references. I am pretty modest about my private life, but [Mike] was vocal about his. His conversations were usually related to bruises he had on himself from visits to women who are prepared to walk on him with high heels. I regularly was shown his chest and other parts of him that were severely bruised by what he said were high heels walking on him. I heard about his foot fetish so many times, I feel ill writing about it now. I've walked in on him in the work arena and he was giving foot massages to policewomen in the prosecutor's office. His comments continually about women's legs etc were sickening. I received verbal complaints from police employees, including policewomen, about his conduct which I was convinced was sexual harassment. This was the point where one woman [name not to be transcribed] quit her role as a court process officer in Lismore to get away from him….."

18. One problem that the plaintiff told me of was that he believed that Mike had the support of Chief Inspector Parkin who was in essence the head of the North Region Prosecutors Branch. Mr Parkin was based, as I understand it, in Gosford. It appears that Mike also had the support of a senior officer at Coffs Harbour where he was based. I need not say much more about the interaction between the plaintiff and Mike because the plaintiff made it clear that he could handle his interaction with Mike, but he could not handle the other stressor which concerned a complaint about missing illegal drugs.

At T31.45 the plaintiff said this in cross-examination:

"I wouldn’t be here today but for that drug matter and the things that - that I felt I was being attacked on."

At T32.02 the plaintiff said this:

"Even the Mike incident was something that I would have continued to handle."

19. The plaintiff's major complaint was about the drug matter to which I have just adverted. Commencing at [85] of his affidavit, the plaintiff said this:

"In late 1997 I began to notice what I thought was more than the usual unexplained discrepancies in briefs coming from the drug squad Officers. Maybe I was looking for this to prove a point. I don't really know. I was clearly obsessed, on reflection. I raised these issues with the Local Area Commander a few times as it seemed to me that the briefs were purposely inept so to facilitate a plea of not guilty and a travel back for court for the officers involved. I was becoming paranoid and suspicious of the conduct of the officers and I raised these thoughts only to be pacified with comments as such as I will have a word with the Detectives to improve their briefs.

86. It was about this time that I recall receiving an anonymous note telling me to, 'Stop the shit' and just do my job. I was frustrated and angry about the lack of response from the leaders of the specialist squads, and the continual errors I was finding in the briefs. On reflection I was obsessive. Perhaps I lacked understanding as to the pressures on police whom I was critical of and the fact that many had simply not been educated properly on criminal proofs and brief preparation. I got no joy in being a brief critic all the time and time and again. Perhaps it was due to corruption. On reflection I feel I was over the top with my criticism and/or misguided with my thinking. But the problem was that subsequent events confirmed that my suspicion of corruption was well-placed.

87. In early 1998 I found a matter at Coffs Harbour where a large quantity of amphetamines seemed to go missing from evidence. After the initial seizure, an occurrence pad entry was generated nominating that 113 grams of amphetamines had been seized. This was a commercial quantity and would result in a more serious charge. This was reflected in the Facts Sheet that accompanied the brief. However, two weeks later, I was presented with a Facts Sheet with a nominated amount of 13 grams, which fell within personal use and would be unlikely to attract a major penalty. I thought that it was important to find out what had gone on. It could have been a typographical error, which can occur in any system, but it is unlikely to have gone as far as the Facts Sheet. If that was the case, then the occurrence pad entry and first facts sheet were wrong and we would proceed on the lesser charges. So I went and checked the original occurrence pad entry and noticed that it stated that the amount was 113 grams. I took a photocopy of the occurrence pad entry and kept it with my files. We proceeded on charges of 113 grams. I don’t recall what else I did now but I was convinced that it was a corruption issue of substantial note.

88. The officer in charge insisted on proceeding on 13 grams and presented me with a copy of the occurrence pad entry that nominated 13 grams - the document had been altered. I knew it but did not say it to him. This could only have occurred through corruption. Either the police had seized 113 grams and decided to pilfer 100 grams for personal use or sale after the creation of the Occurrence Pad entry, or some deal had been done between the Police and the accused after the arrest to get the amount down for a personal use plea. There was no other explanation.”

20. The plaintiff reported this discrepancy to Inspector Wadsworth, who was in charge at Coffs Harbour. However, the prosecution of this matter was then taken on by Mike, whom the plaintiff felt was instrumental in securing his absence from Coffs Harbour at the time that the prosecution was presented in court. In [90] of his affidavit, the plaintiff went on to say this,

“I raised it with [Mike] who essentially again said, ‘There's something wrong with you. You're imagining things and causing trouble.’”

The plaintiff then found out that he was no longer to be rostered to prosecute at Coffs Harbour. Initially, the plaintiff was relieved by that decision. However, the plaintiff referred the matter to Internal Affairs. The complaint was given to Inspector Peter Gallagher, who was the officer in charge at Lismore.

21. I have some difficulty in the position adopted by the plaintiff about this matter. Under the Drug Misuse and Trafficking Act 1985, distinctions are drawn between the quantum of any illegal drugs. For amphetamines, the Act currently provides this:

Quantity	Amount
Small	1 gram
Trafficable	3 grams
Indictable	5 grams
Commercial	250 grams
Large commercial	1 kilogram

I have not gone back to see whether it was the same regime in 1998, but if any things have changed in the Drug Misuse and Trafficking Act, the amounts in question have been reduced rather than increased, in response to the government taking a hard line on the use of illicit drugs. Section 29 of the Drug Misuse and Trafficking Act 1985 is this:

29 Traffickable quantity—possession taken to be for supply

A person who has in his or her possession an amount of a prohibited drug which is not less than the traffickable quantity of the prohibited drug shall, for the purposes of this Division, be deemed to have the prohibited drug in his or her possession for supply, unless—

(a) the person proves that he or she had the prohibited drug in his or her possession otherwise than for supply, or

(b) except where the prohibited drug is prepared opium, cannabis leaf, cannabis oil, cannabis resin, heroin or 6-monoacetylmorphine or any other acetylated derivatives of morphine, the person proves that he or she obtained possession of the prohibited drug on and in accordance with the prescription of a medical practitioner, nurse practitioner, midwife practitioner, dentist or veterinary practitioner.

22. It can be seen therefore that 13 grams of amphetamines is both a trafficable quantity and an indictable quantity. It was certainly not a commercial quantity. 13 grams of amphetamines would justify a prosecution on indictment in this Court. The only difference between 13 grams and 113 grams would be the quantity of the drug, which, depending on its purity, might go to the level of penalty to be imposed, rather than the nature of the charge with which the accused person was arraigned.

23. Suffice to say that the plaintiff’s complaint to Internal Affairs generated resentment within the local police ranks. There were clearly those who sided with Mike and some who sided with the plaintiff.

24. The matter which caused me to delay giving judgment on Friday was that the timing of the drug matter given by Mr Nick Moir was different. Mr Moir is now a member of the Bar. He was a police prosecutor who resigned and then joined the Many Rivers Aboriginal Legal Service. Mr Moir joined that service on 1 August 1997. I should indicate that Mr Moir gave evidence that in 1997 and 1998 there were four Aboriginal Legal Services covering this state. It appears that they have since all merged. This led to the Many Rivers Aboriginal Legal Service being referred to in this hearing as merely the “ALS”. The Many Rivers Aboriginal Legal Service had in 1998 offices in Coffs Harbour, Kempsey, Lismore and Newcastle. Evidence was given that its headquarters may have been in Grafton, but the letters from the Many Rivers Aboriginal Legal Service that have found their way into evidence do not refer to any office at Grafton.

25. Mr Moir started as a police prosecutor at Lismore in late 1994, or early 1995 because a local prosecutor, Bill Larden, went on to long term sick leave. Not only was Mr Moir working at Lismore, he was also doing circuit work between Tweed Heads and Gosford, along the New South Wales north coast. At the end of 1996, he went overseas and returned to Australia in 1997. Prior to his overseas travel, he had been offered a fulltime position at Lismore Local Court. However, when he returned from his trip, he found out that the promise that had been made to him by one of his superiors was not kept, and that caused him to submit his resignation some three weeks prior to joining the ALS. That means that his resignation was tendered in early July 1997.

26. Mr Moir believed the drug problem which was the plaintiff’s major stressor happened in 1997 before he left the police force, rather than in 1998. I accept that Mr Moir did his best to tell me the truth. However having reread his evidence and the evidence of certain other witness, I am persuaded that the drug problem raised its head in or about early 1998 rather than a year earlier. The key to that is in my view the evidence of Belinda. The plaintiff and Belinda married in February 1998. That is contained in [7] of her statement of 12 October 2007 which is exhibit E. She affirmed an affidavit on 31 January 2020, which is exhibit D. In [52] of her affidavit, Belinda said this;

“We had a beautiful wedding which we paid for by ourselves in full without any help from friends or relatives. The wedding was at Byron Bay and many people say it was the best wedding ever. The guests probably always says that, but honestly it was great.”

There is no suggestion that at the time of their wedding, the plaintiff and Belinda were troubled by the aftermath of the Internal Affairs complaint about the drug deficiency. Furthermore, the vast bulk of the evidence indicates that the harassment, which essentially what the plaintiff says occurred, happened over a relatively period of time, a matter of six months rather than a matter of 18 months. Therefore I have to accept that Mr Moir’s estimate of when the event occurred is based upon a poor memory.

27. The plaintiff referred in [93] of his affidavit to his marriage to Belinda in February 1998. There does not appear to be any dispute about the timing of their wedding. It is common experience for the courts to be told of a date of a wedding anniversary by a wife, but the date of the wedding is usually not the subject of the active of recollection by the husband. That may sound sexist, but that is clearly my experience, and for example, was drawn to my attention by His Honour Judge Frank McGrath, a former Chief Judge of the Compensation Court of New South Wales, and, before that, the Chairman of the original Workers Compensation Commission. His Honour is married with four daughters, so he had some exposure to female proclivities.

28. In any event, after referring to his marriage to Belinda at [93] the plaintiff went on to say this;

“94. Sometime after this and after feeling isolated and bullied by [Mike] and the bosses whom [sic] clearly just wanted me to ‘shut up’, I began receiving threats and verbal abuse from Police officers. I expected this from Coffs Harbour police because of [Mike], but I was getting it at Lismore. I was being ostracized from parts of my social circle, and tried to avoid associating with police officers. I was being called names by other officers at the station, mostly under their breath as they would walk past me, but it made me feel sick every time.

95. Belinda and I started receiving telephone calls late at night. Some nights we received two or three calls in a night. Belinda told me she was getting these calls while I was away on circuit duty.

96. Another incident is when our dog disappeared for three days. Belinda had arrived home to find the side gate open the dog missing. The dog returned after three days with signs of having been beaten. I recall Belinda thinking it was perhaps the police, but I don't think so. I think just a coincidence.”

29. Belinda in her affidavit discusses the missing dog issue between [88] and [90]. She states that in her mind the dog going missing was “no accident”. However, that was not the attitude adopted by the plaintiff. It is clear, as I will seek to show that Belinda has developed an animus against the NSW Police, and I prefer the evidence of the plaintiff on this issue to that of Belinda.

30. The plaintiff’s affidavit then continued thus;

"97. I felt scared and angry because of what was happening. My hands began to shake involuntarily on occasion without warning. I could not control it. I was dizzy and had trouble driving to work a few times and had to stop at the roadside to wait for it to pass. I had no idea what a panic attack was but I do now…

98. On 10 May 1998 I applied for promotion to the rank of Inspector to apply for a Legal Supervisor role in Sydney. I felt I had to get away from the North Coast circuit. My application was endorsed by my Local Area Commander, Senior Sergeant John Boyd on 22 May 1998."

31. The plaintiff told me that he remembered going to Parramatta to be interviewed for this job as Inspector but was advised at the interview that his application was unsuccessful. I should also point out that the senior sergeant Boyd was not the patrol commander at Lismore, but rather the acting head of Prosecuting Services North in 1998. No evidence has been put before me about the plaintiff's application for promotion, nor why his promotion was unsuccessful. It is highly unlikely that the plaintiff's application disclosed his real reason for wanting to transfer to Sydney, that he was experiencing difficulty with his colleagues in the Northern Rivers area.

32. The plaintiff's affidavit then continues thus:

"99. In or around mid-1998 I felt that I needed to leave the Police Force. I withdrew from my family and remaining friends. I did not want to see anybody and I did not want to talk about it even to my brother whom [sic] was then an officer at Lismore. I felt sick every day. I had no expertise in psychological issues and I did not know what anxiety and panic attacks were, but I do know now…I wasn't eating much and I was drinking too much which helped me sleep. It was quite a bit more than I used to. While I did maintain contact with my family, I did not speak, I did not feel that I could tell them what was going on. I always put on a brave face so to speak. I did not want to show weakness, it was not my way. I actually wish I understood what was happening. All I wanted to do was to work and I didn't want to be shaking and dizzy and stressed. I thought it was my heart and that is the reason I went to see the doctor to see if I could get some medication to settle me down."

The doctor in question was Dr Robert Millar, a general practitioner at Lismore that the plaintiff appears to have consulted on 21 August 1998. This was towards the end of the plaintiff's career in the NSW Police.

33. His affidavit then continued:

"100. I didn't want to leave the police but I wanted to get away. I was committed to the Police but I could not face going there. I wondered if I could get leave without pay so I first thought about a role with the DPP whom I thought would support my efforts more to improve systems and that they had a stronger legal base from which my efforts would be supported. However, there were no such openings. I struggled to work out what I wanted to do. I knew I had committed my adult life to the police and also knew that doing anything else was foreign to me and I was apprehensive.

101. At some time before my resignation date I had to go to Lismore Police Station to pick up something. I cannot recall what it was. I had an anxiety attack in the car outside the station and I could not get out of the car. I recall calling Belinda at this time and telling her, 'I can't get out of the car, I'm not good'. I arranged for my brother to attend to collect my things."

There is one known occasion when the plaintiff had his brother, a then detective senior constable working in Lismore, go to the Lismore Police Station to clean out the plaintiff's locker. That was at the time of the plaintiff's resignation. That might be the time to which the plaintiff was referring. If so it was well after his resignation had been tendered and accepted. The cross-examination in this regard can be found from T38.42 to T39.19 and also at T53.01.

34. There are some contemporaneous documents which assist in establishing the chronology in the middle of 1998. Mr Nick Moir, who remained the plaintiff’s friend, was concerned about him, and tried to persuade the plaintiff to leave the police force and to go to work with the ALS. To that effect, Mr Moir discussed the matter with the principal solicitor of the Many Rivers ALS, Mr John Boersig. On 31 July 1998, the plaintiff submitted a report. It commences with an application for 12 months leave without pay, commencing on 30 August 1998 and approval being sought for secondary employment during that period as an advocate for the ALS. Under the heading, “Background”, the document says this:

“On Friday 31 July 1998, I was offered the opportunity to take a position with the Aboriginal Legal Service at Taree to service the surrounding districts as required.

The period in question is 30 August 1998 to 28 August 1999.

COMMENT

I request that favourable consideration be given to this application for the following personal reasons.

1. To broaden my knowledge and ability as an advocate.

2. To enhance my prospects of promotion within the NSW Police Service.

3. To provide me with the experience as an advocate in the District and Supreme Court.

4. To allow me to in fact utilise my current Supreme Court practicing certificate.

5. After the completion of this term, I'm willing to transfer to Newcastle/Gosford area, thereby not requiring that you relieve my position temporarily until August 1999.

6. My experience and understanding of the Criminal Law would be advantageous to the Police Service and the Aboriginal Legal Service during this period.

7. I believe it would be instrumental in reducing court delay significantly by proper brief analysis, providing informed and accurate advice to clients and a significant and proper liaison with the relevant prosecuting bodies.”

The application then goes on to refer to a number of matters that the plaintiff asked to be taken into account. In essence, there are 13 of them, and many of them speak of the benefit to be derived by the NSW Police, as well as by the ALS and the Legal Aid Commission. There is no mention whatever of any personal difficulties which the plaintiff may have been working under at the time.

35. On 5 August 1998, a Senior Sergeant Boyd discussed the application and recommended that it be declined. The essence of Senior Sergeant Boyd’s recommendation was this:

“While I appreciate the matters raised by Sergeant Day in his report dated 31 July, 1998, unfortunately I am unable to support his application. Prosecuting Services North has suffered from staff shortages of five prosecuting sergeants for a period in excess of two years. It has only been recently that officers have been selected for these positions, and I anticipate that these positions will not be occupied until at least August, 1998. Once again, the remaining prosecutors would have to bear the burden of these staff shortages.

Further, having regard to the nature of the proposed duties for the period of 12 months, there may well be perceived conflict of interest having regard to the fact that he would remain a member of the Police Service during that time.”

36. On Thursday 13 August 1998, the officer in charge at Coffs Harbour, Superintendent Wadsworth, informed the plaintiff that he was placing him on the Internal Witness Protection Program. According to a document generated by the plaintiff on 15 August 1998, at that stage, he had not heard from anybody from the Internal Witness Protection Program.

37. On 14 August 1998, Mr Boersig addressed a letter to the plaintiff concerning the position of a solicitor with the Many Rivers ALS in the Taree area. It says this:

“I refer to our telephone conversations regarding employment as a solicitor for a one year period, commencing September 1998.

I note your concerns regarding possible conflict that may arise pertaining to your status as a prosecutor with the New South Wales Police Service. I believe we can overcome any difficulties or conflicts should they arise.

I look forward to your employment with confidence that the opportunity will bring rewards to the Police Service, our organisation and our clients.”

The letter is addressed to the plaintiff, merely as the “Lismore Prosecutor”, and it may well be that the letter was either hand delivered to the plaintiff or sent to him in some electronic form on or about 14 August 1998. An event occurred on the evening of that day.

38. The event on the evening of 14 August 1998 is best described by Belinda in her statement of 12 October 2007, Exhibit E. That contains this matter.

"28. I don't remember the exact date but it was about this same time. Roland had been to visit a mate, Craig Ponton, who lived in Modenville. I had gone to pick up Roland and I was inside talking to Craig over a cup of tea. We were sitting there talking when all of a sudden we heard the sound of a gunshot. I grew up on a farm so I could tell the sound came from nearby. I said to Craig, something [like], 'Where is your dog, where is Zac?' We all went outside and I saw Craig's neighbour Mick Moss who was a police officer at Lismore standing there with a rifle in his hand. I looked around and saw Zac in the back yard. He was standing up but gasping for breath and he had a stream of blood coming from his neck. I ran inside the house and rang a vet I knew named John. I asked him to come out to the house but unfortunately Zac was too badly injured and he later died.

29. We called the police and reported the incident but it didn't go down too well that Roland was making a report on the incident against another police officer. From what he told me, Roland was made to feel the 'bad guy' for making the complaint against Mick Moss. It was an added a stressor and something that he didn't really need."

39. The first thing to note about this incident is that the action of Moss was not directed in any fashion towards the plaintiff but to Mr Ponton's dog. That Mr Moss acted badly can be seen by the fact that he discharged a firearm in or within hearing of a public place and performed what could be described as an act of animal cruelty. Whether it was reported to the police by the plaintiff or Mr Ponton is beside the point. Mr Moss had done the wrong thing and was eventually dismissed from the Police Force. However, this had really nothing to do with the plaintiff and it is clear when one looks at the chronology of the events that it did not directly influence what was later to occur.

40. On the following day 15 August 1998 the plaintiff made another report and a further application for 12 months' leave without pay. The plaintiff's report is this:

"On 5 August 1998 [sic, scil. 31 July 1998] I made application for 12 months' leave without pay. On 10 August 1998 this application was refused by Mr Des Mooney, Executive Director, Management Services Business Unit, Police Service NSW.

At the time of making the application certain events have taken place concerning my duties as a Police prosecutor that could not be disclosed in that report, or for that matter this report.

The events referred to had culminated in me [sic] being place on the Internal Witness Protection Program. Mr Wadsworth, Superintendent at Coffs Clarence Local Area Command informed me that he was officially placing me on the program on Thursday morning 13 August 1998 at Coffs Harbour. He said that I would be hearing from someone later that day with a view to ensuring proper procedure. At this stage I have heard from no-one.

During the week of 10 August 1998 matters have escalated to the extent that I am even more desirous of taking 12 months' leave without pay.

Even as late as last evening, my wife and I were inadvertently involved as witness against a police officer relating to an incident at Modenville near Lismore. This incident involved a police officer using a firearm off duty.

It is even more important to me now to be granted this leave without pay, more so than it was at the time of the original application. I believe that a decision to grant me leave in these circumstances will be important to the future of my career in the Police Service of NSW.

Please again consider this application in light of the further matters that I now know you are aware of. I fully appreciate the staffing difficulties you are experiencing, however my situation is such that my absence may be forced in any case."

41. On the following Thursday, 21 August 1998, at appears that the plaintiff went to see Dr Robert Miller at Lismore. The plaintiff was given a medical certificate. It says this:

"Sgt. Day is disabled due to acute anxiety and depressive reaction, 21/8/98 - 18/9/98 inclusive."

This medical certificate was sent by facsimile to the New South Wales Police from the facsimile machine held by the plaintiff and his wife at their home. The exact date it was sent is partially obscured. The date appears to be either 23 or 25 August 1998. 23 August was a Saturday and police prosecutors do not work on weekends. It is likely that the document was sent on Monday 25 August 1998. There is nothing else from Dr Miller in evidence. It is accepted that Dr Miller is deceased. However, whether his practice was sold or not, I do not know and there is no evidence before me of any attempt to try to obtain the doctor's clinical records. In any event it is common ground that the plaintiff saw Dr Miller once, and only once. It is also clear from the plaintiff's evidence that he was prescribed no medication by Dr Miller. That can be found at T53.29. It appears from the plaintiff's evidence, and I am prepared to accept that he never returned to work with the NSW Police after being certified unfit by Dr Miller on 21 August 1998.

Plaintiff’s resignation

42. As I mentioned towards the beginning of these reasons, the plaintiff prepared a letter of resignation which bears the date 26 August 1998. It is Exhibit HH. It commences with this matter:

"It is with sincere regret that I hereby tender my resignation from the New South Wales Police Service.

Effective as at the end of the rest day on 26 September 1998.

I always thought of myself as a career police officer and I fully expected that I would retire from the police service after the age of 55 years. However, that is not to be.

For the sake of the others experiencing the types of problem I have, that has led to this decision, I will bring certain issues to your attention."

There is then a heading "Excessive Workload" which is addressed in nine paragraphs. It complains of what the heading suggests and points out that the despite numerous requests nothing had ever been done to resolve the problem. There was also a discussion of the conflict between the Police Prosecuting Branch and the DPP. The next section of the resignation is headed "Rank Structure" and contains six paragraphs over one page. It commences thus:

"The recognition of the responsibilities I have thus far referred [to] does not mean I believe or am seeking greater pay, or in my opinion the remuneration provided to these officers at the rank of incremental sergeant is quite satisfactory. The problem is that the rank of sergeant or acting sergeant is totally unsatisfactory because the responsibilities commensurate with the duties of a police prosecutor far outweigh the rank provided for such duty."

In other words, the plaintiff believed that police prosecutors should be given a commissioned officer's rank. The third section of the resignation bears a heading "Lack of Opportunities for Police Prosecutors" and essentially complains about a lack of a suitable career path for those who undertake the work of a police prosecutor. The final section bears a heading "General" and contains this matter:

"Please ensure my comments are conveyed to the Commissioner if appropriate. I am of the opinion that he is the person who must know about these types of matters. He is the only one who can effect changes that must urgently be made to ensure for the future of police prosecutors and in my opinion to substantially improve the morale of all police.

Thank you for many good years as a police officer, and I provide these comments only as 'food for thought'."

One will note that there is no complaint made by the plaintiff about his inability to work any longer as a police prosecutor, or of any psychiatric illness which caused him to be unfit to perform such work. It is clear from the “received” stamp on the first page that the police service received the resignation on 4 September 1998 which was a Thursday and Senior Sergeant Boyd asked the staff administration officer to process the plaintiff’s resignation. It came to pass that the plaintiff’s resignation was processed and his last date of service was on 26 September 1998.

43. At the same time that the police service received the plaintiff’s resignation, an application for leave of absence was processed, that is, on 4 September 1998. The leave sought was sick leave for the period covered by Dr Miller’s certificate 21 August to 18 September 1998. The application for leave has been signed by Senior Sergeant Boyd. It contains this endorsement:

“Officer has not returned to work to sign application. Signed by J Boyd, Acting Commander.”

The application for the sick leave was approved on that day and the sick leave was granted.

44. On the day prior to the receipt of the plaintiff’s resignation and the day when the plaintiff’s sick leave application was processed, Senior Sergeant Boyd, as acting commander of Prosecuting Services North sought an urgent review of the previous decision to decline leave without pay. It records that Chief Inspector Parkin had conversed with Mr Howard Bell of Legal Services concerning the circumstances surrounding the plaintiff’s application. In a number of places, the application is marked urgent. It would appear that Senior Sergeant Boyd may have suspected that the plaintiff was about to submit his resignation. However, Senior Sergeant Boyd was not called to give evidence nor was any statement taken from him nor was his absence explained. However, it is likely that he has long since left the NSW Police and his current whereabouts might presently be unknown to the NSW Police.

45. The plaintiff’s allegation is that he was suffering from the anxiety and depression certified by Dr Miller. In that regard he is supported by Belinda. In evidence there is an affidavit of the plaintiff’s brother, Mr Whayne Scott Day affirmed on 26 May 2020 and to which is annexed a statement made by Mr Whayne Day on 24 September 2007. The time of the plaintiff’s resignation as I have already mentioned Mr Whayne Day was a detective senior constable of police. At the time he made his statement on 24 September 2007 he was a sergeant of police living in East Maitland and as I understand it working somewhere in the Hunter Valley. Mr Whayne Day was discharged from the New South Wales police force on 10 March 2016. In [12] of his statement of 24 September 2017 Mr Whayne Day confirmed the plaintiff’s complaints to him about his prosecuting colleague, Mike, to which I have earlier referred. The next paragraph of Mr Whayne Day’s statement is this:

“13. It was about the same time that Roland came to me. He told me he had an ongoing court matter in which he had to examine documentation regarding exhibits in relation to drugs. I don't know the exact facts of the matter but Roland did discuss with me a fear that he had identified corrupt practises within the police at Coffs Harbour relating to a reduction in drug weights between the time of collection and the time of analysis.”

Mr Whayne Day then set out the usual police practice regarding powdered substances that was used at that time and then continued thus:

“I could tell Roland was worried and was very distressed by what had happened as usually he never discussed his cases with me. He said to me something like ‘If I don’t report this, I can be seen as part of the corruption and conspiracy’. His hands were tied and he felt he had to report it. I am aware he did report the incident and that, as a result, he was placed on the internal witness security program. However, as it happened with me, when I was similarly placed on the IWSP for reporting and incidence of corruption, there was no follow-up and no support. I believe Roland felt he had been hung out to dry."

46. There was an incident that Mr Whayne Day could recall when he went to the plaintiff's home on his way to his home from work when he was still wearing his uniform overalls. There was a confrontation which is addressed by Mr Whayne Day in [9] of his affidavit of 26 May 2020 which is Exhibit F. That paragraph is this:

"To the best of my recollection I had the following conversation with Roland at that time:

WD: G'day, Rols, how's it going?

RD: What are you doing coming to my house in your uniform?

WD: What?

RD: Get that thing out of here! I'm sick of seeing it.

At this point Roland gestured at my uniform.

WD: What's wrong?

RD: I'm sick of seeing the uniform, being around the uniform. I'm over it. Do you know how it makes me feel?

WD: Are you okay?

RD: No, I'm not. Every time I see that uniform now my anxiety goes up. It makes me sick to the stomach.

WD: How was I supposed to know?

RD: Well, now you do. Don't come around again wearing that.

At this point Roland shut the front door on me."

Mr Whayne Day then left his brother's premises and felt as if he were in shock. He pointed out that this behaviour was completely out of character for the plaintiff.

47. Mr Whayne Day told me that sometime in September 1998 the plaintiff told him he had "pulled the pin", meaning that had submitted his resignation. However, Mr Whayne Day did not know all the facts and in [19] of his statement of 24 September he made the assumption that the plaintiff was "over-reacting". Paragraph [20] of the statement is this:

"Once Roland had made the decision to leave the Police, things happened very quickly. Looking back on it, it seemed to me as if he wanted to separate himself from NSW Police and his past as a serving officer as quickly as he could. I organized a farewell for him as I felt he should not leave without there being some recognition for his years of service. He was most reluctant but then agreed; but he was very definite about who he did and did not want there. Then, almost overnight, he and Belinda literally packed up and left town. He took a job working for the ALS in Taree with a substantial drop in salary, another move at this time I could not understand."

48. After resigning, the plaintiff sold his property at Mountainview Drive, Goonellabah, to his brother Mr Whayne Day. In cross-examination Mr Whayne Day gave this evidence:

"Q. He was living at 49 Mountainview Drive, Goonellabah.

A. That's correct, your Honour.

Q. And you bought that property from him.

A. I did.

Q. For value?

A. For value, yes.

Q. So he didn't give it to you at a discounted price.

A. No, sadly.

Q. Do you remember how quickly after he resigned that you bought the property from him?

A. I couldn't give you specific dates, your Honour, but it is fairly quick.

Q. A matter of weeks?

A. It would have been a matter of weeks, yes."

Mr Whayne Day did not use that property as a residence but bought it as an investment property which was negatively-geared.

49. The selling of the house is one small contentious matter. For example, [32] of Belinda's statement of 12 October 2007 says this:

"Roland's behaviour around this time was erratic and he made some puzzling decisions. We sold the house in Lismore to Whayne so he could sort things out quickly. It was like he needed a clean slate and put everything behind him."

However, in her affidavit she makes a further allegation at [142] and it is to be remembered that the affidavit was affirmed on 31 January 2020 some 12 years at least after she had made her statement:

"Roland resigned from the Police Force around September 1998. We sold the house and moved to Taree. We sold the house, which was in his name, for [sic] very cheaply to his brother Whayne. I thought he was crazy to do this so cheap, but at least it was his brother. It happened very quickly. I felt like I was just a passenger while it was happening."

One can discern that the allegation about the selling the house at a discount is a recent invention compared to what the witness said in her statement made on 12 October 2007.

50. However, the plaintiff also spoke about the selling the house cheaply to his brother. At [126] of his affidavit the plaintiff said this:

"After leaving the police service we sold our house in Goonellebah to my brother Whayne. I sold it cheap because I was angry, I think. I never wanted to go back there ever again and we moved to Taree to a rental premises."

51. I prefer the evidence of Mr Whayne Day on this issue. The premises were not sold by the plaintiff cheaply to his brother, but for full value. The allegation that this was a cheap sale is a relatively recent invention. I should point out that there is no statement or anything made by plaintiff prior to the affidavit which he affirmed on 25 May 2020, getting on for 22 years after relevant events. For example, it is common practice for police officers seeking to be medically discharged or for former members seeking a medical discharge to provide a lengthy statement in support of the application. The list of documents which was annexed to the plaintiff's application of 4 June 2008 for medical discharge can be found on p 104 of the court book immediately after the last page of the 11-page document, and it is clear from the received stamp that it was part of what was sent to the defendant and received by the defendant on 6 June 2008. It refers inter alia to the statements of Belinda and Whayne Day, but there is no statement made by the plaintiff himself.

ALS at Taree (1)

52. As ought be clear from what I have already said, the plaintiff and his wife moved to Taree where the plaintiff took up an appointment as a solicitor with the Many Rivers ALS. When he took up that appointment is unclear. Although a subpoena for production was issued to the ALS there were no documents contemporaneous with the plaintiff’s taking up his employment with that entity, which was unsurprising to Mr Moir who would clearly know the extent of the record-keeping of the ALS at Taree at the time. After all, he was doing the work for the Many Rivers ALS at Taree which the plaintiff himself took up.

53. It is clear from Mr Moir's affidavit that there was a perceived problem with the plaintiff's practising certificate, bearing in mind his leaving the NSW Police and moving to work as a solicitor with the ALS. Mr Moir's recollection is that the plaintiff started working for the Many Rivers ALS at Taree around Christmastime 1998. In chief the following evidence was given:

"Q. Did you have a telephone conversation with Mr Day in which he told you something about his police service?

A. Yeah, he - he called me. If we’re…talking about him resigning, he told me he left, he - well, he ‘pulled the pin’, were his exact words. And…he inquired whether the…job was..still available and I then spoke with John [Boersig]. And….that was when it was discussed that he join the Many Rivers Aboriginal Legal Service. But he didn’t actually join the Many Rivers Aboriginal Legal Service for some time after that because of his perceived difficulties with the LPAB...

HIS HONOUR

Q. He had to obtain a practising certificate, no doubt.

A. He..did, but that wasn’t the difficulty. At the time, both Roland and myself had given undertakings because we’d been exempt from many things to become lawyers because we’re prosecutors - we gave undertakings not to work for anyone but the Public Service of New South Wales. The Public Service was devolved and he had some concerns about whether he would be breaching his undertaking to the Aboriginal Legal Service. I informed him that a year earlier I had sought advice from Paul Rosser of Queen’s Counsel on exactly that point. Paul Rosser had assured me and given written…advice that, ‘No, the undertaking would be fine, would still be complied with because you are going to a non-profit organisation, a quasi-government organisation’. Roland was very paranoid and couldn’t leave it at that and so it cost him a few months’ work. And I'm sure those documents sit with the LPAB somewhere.”

54. It would appear, doing the best one can, that the plaintiff started working with the Aboriginal Legal in November 1998, having resigned from the NSW Police on 26 September 1998.

Renvoi – visits by Police

55. Before going on to the ALS, I should advert to another matter of controversy with the Police, being visits made by the Internal Witness Protection Service and the Police Welfare branch to the plaintiff and his wife. There was some confusion in the evidence, especially in that of the plaintiff, about this issue. In his affidavit, the plaintiff said that he was visited by two Internal Affairs officers, concerned with the witness protection, on 13 August 1998. However, that is not mentioned in his report of 15 September 1998. The plaintiff himself admitted, at T 43 23, that he could not be sure as to what events took place and in what order they took place and how he was feeling. It transpires that it is likely that there was a visit by an officer from the Police Welfare branch sometime after the police received the medical certificate of Dr Miller dated 21 August 1998, which appears to have been sent to the police service on or about the Monday 25 August 1998.

Leaving out the date, [115] of the plaintiff’s affidavit is this:

“I was visited by two officers from Internal Affairs. I was informed that I was being placed on the Internal Witness Protection Program due to the report I had made about the missing drugs from Coffs Harbour. I was quite shocked and became scared but angrier. ‘How dare they’, I thought! I was informed that someone would be in contact with me later that day to ensure proper procedure. Some days later I received a call from a person representing he was from police welfare and asking to drop in and see me. I do not know what my response was now, I recall the call but am blank after that. I think somebody came to see me – I truly don’t recall who, but my recall is that someone sat with me saying they were the welfare branch. I am doing my best to recall that my recollection now is vague other than I was angry.”

56. Why he should be angry by being called upon by somebody from the Police Welfare Branch is not explicable other than some form of mental disorder. Generally, Police Welfare Branch are there to assist anyone they perceive may need some help. Furthermore, it is clear from the contemporaneous documents that the plaintiff was advised by Superintendent Wadsworth at Coffs Harbour on 13 August 1998 that he was being placed on the Internal Witness Protection Program so that when two people from that Program/Internal Affairs turned up at his place after that date, he could hardly be surprised by it. It is clear from his memorandum of 15 August 1998 that he was expecting it. There is corroborative evidence from the plaintiff’s wife that they were visited by two people from Internal Affairs and later by somebody from the Police Welfare Branch. She thought, if my recollection be correct, that was about three days later. That puts these visits at some time between 15 August and, for example, the date of the submission of the plaintiff’s resignation on 4 September 1998. Despite what slant the plaintiff may now place upon those visits there is nothing to suggest that they were in any way extraordinary or that the officers did not behave properly.

ALS at Taree (2)

57. The plaintiff said that he had difficulties working for the ALS at Taree. His affidavit contains this:

“127. In November 1998 I began working with the Aboriginal Legal Services in Taree. I felt okay but I was severely nervous and stressed about the new work. However, I started thinking that I could in some way get back to the police if I was appearing for people. I would show them how bad their briefs were and at the same time represent people whom I had always then thought were underrepresented.

128. The job paid about $20,000 less a year than what I was on with the Police, but I had to do something. I had to do what I knew I could make money doing even though it would bring me in contact with police but in a completely different context.

129. I had difficulties with my role. I was required to attend the police station to see clients and found myself becoming anxious and distressed. I had further issues dealing with the police officers involved in my cases. I did not trust them. I was still drinking a fair bit at this time and suffered from feelings of nausea and anxiety when travelling to work.”

58. The plaintiff gave particular evidence about his initial requirement to attend upon his clients when they were held in custody at the Taree police station having what might be thought to be thought to be a panic attack. The plaintiff told me he obtained some Valium from his mother and took about half a tablet over a period of two months from when he started with the ALS at Taree but after that there is no evidence of his taking any form of medication or of seeking any medical treatment.

ALS at Newcastle

59. The plaintiff remained working for the ALS at Taree until 6 May 2000. He then obtained what may be thought to be a promotion to become the principal solicitor with the Many Rivers ALS at Newcastle. According to a curriculum vitae that the plaintiff prepared some time in 2001, he commenced the work in Newcastle on 6 May 2000. He was replacing Mr John Boersig who moved to the ACT where he is now the principal Aboriginal Legal Aid solicitor. The position in Newcastle was offered to Mr Moir but he declined it because he wanted to still spend all his working time in court. The plaintiff’s position at Newcastle was essentially an administrative one appointing solicitors to various courts and supervising their activities but he, himself, still did court work, appearing less regularly than he formerly had when working at Taree. However, working in court he must certainly have been doing because he was invited by the then Chief Magistrate Ms Patricia Staunton to apply for the position of a magistrate.

Application for appointment as a Magistrate

60. Exhibit MM is the plaintiff's expression of interest to become a magistrate together with a chronology which covers four pages, and then two pages of information about himself, followed by a list of referees. The first referee put forward by the plaintiff to the Chief Magistrate was Mr Barry Hodgson, the resident Magistrate at Taree. Other referees were Mr Mark Shearing of the Newcastle office of the DPP, another was Mr John Boersig and another was the Assistant Dean of Clinical Legal Education at the University of Newcastle, Ms Carol Abele, and also the manager of the Many Rivers Aboriginal Legal Service and the Durawha Training and Development Corporation at Grafton.

61. The plaintiff's expression of interest commences thus:

"I write to express my interest in an appointment to the Magistracy. I am particularly interested in a Country Magistrate's position where my experience living and working in country towns with a high indigenous population would be an advantage.

I've extensively practiced as an advocate in the Children's Court, Local Court and District Courts in the State of New South Wales practicing mainly in the Criminal and quasi-criminal law. In recent years, as a solicitor advocate with the Aboriginal Legal Service, I have diversified somewhat in assisting and advising numerous Aboriginal persons in a variety of matters including civil, family, employment, discrimination, succession and childcare and protection issues.

My professional career as an advocate commenced in 1983 when I was appointed a police prosecutor. I had the benefit of appearing before numerous Magistrates throughout the State of New South Wales. I have developed a balanced and comprehensive understanding of the functions of Magistrates and their statutory/implied powers. I'm aware of the pressures associated with the appointment, both socially and professionally, and I believe I am equipped with the knowledge, experience, patience, compassion and understanding to professionally perform the task that may be required.

I've always maintained a strong rapport with the Legal Profession, Family and Community Services, Juvenile Justice, Probation and Parole, corrective services and the Police. My aim has always been to promote an atmosphere of respect and co-operation amongst parties to proceedings to assist in the proper and expedient dispensing of Justice.

I'm aware of the necessity to follow practice directions and maintain time standards. I pride myself on being able to make decisions expediently and accurately.

I respect individual freedoms and cultures, at the same time appreciate the difficulties often experienced by persons not equipped with the education and/or sufficient command of the English language required to promote the interests of justice on their behalf.

I believe in the Legal System in New South Wales and I look forward to the opportunity to advance the interests of Justice in any community if appointed as a Magistrate.

At present I also hold a position as a clinical lecturer with the Faculty of Law, lecturing in Criminal Law Advocacy I and II, at the University of Newcastle."

The plaintiff then enclosed his curriculum vitae and he then expressed looking forward to an opportunity of being interviewed for an appointment to the Magistrates' Bench.

62. The evidence is silent as to whether there was such an interview. There is no matter before me about the process of the plaintiff's becoming a magistrate other than an Executive Council minute paper and a copy of the plaintiff's commission. One would think that, in the normal course, the Attorney-General's Department would have checked with the referees put forward by the plaintiff and would have sought the advice in particular of the Chief Magistrate before appointing the plaintiff to the Bench. The executive council minute paper contains a recommendation by the then Attorney-General, Mr Bob Debus, recommending the appointment of the plaintiff as a magistrate and a mining warden. Her Excellency the Governor was pleased to approve the recommendation on 11 July 2001. The Commissioner under Her Excellency's hand and the Public Seal of this State was issued on the same day, 11 July 2001, appointing the plaintiff a magistrate with effect on 23 July 2001. I assume that in accordance with normal practice, the plaintiff was sworn in as a magistrate on 23 July 2001. The plaintiff's commission as a magistrate was entered in the Register of Patents No 87 p 515 on 11 July 2001.

63. Mr Whayne Day gave this evidence about the plaintiff's appointment to the bench:

"Q. When he got his appointment as a magistrate he was pretty happy that, wasn't he?

A. I think he was quite excited, yes.

Q. He told you about it, didn't he?

A. Certainly.

Q. I take it you went out to celebrate somewhere?

A. I came to - well, surprisingly I don't think we did go to celebrate. I came here the day that he was in the Downing Centre when he was sworn in. It's an amazing affair as you all know, but I don't think we went out to celebrate as such. I didn't go with him."

The appointment to the bench must have been a highlight of the plaintiff's legal career. It was no doubt an exciting time for him.

Plaintiff’s allegation

64. Yet I am now asked to find throughout the time that he worked with the Aboriginal Legal Service at Taree and Newcastle, and during the time that he spent as a magistrate, and over the time since then that he was disabled by the infirmity of chronic adjustment disorder with mixed anxiety and depressed mood from working as a police prosecutor.

65. One aspect of that is that the plaintiff had a phobia about policemen. For example, when seen by Dr Peter Klug on 13 March 2008. Dr Klug recorded this:

"He experienced, despite his resignation [as a police prosecutor], persistent symptoms from that time on, including the following:

•   Marked 'hatred' of police.

•   Marked anxiety in response to any contact with police or reminders of his police service - this sometimes progressed to agitation.

•   Social withdrawal.

•   Diminished network of friends

•   He phobically avoided his brother who was (and is) in the police.

•   Irritability.

•   Marital tension which he attributed to changes in his mental state - he separated from his wife subsequently - he said his social withdrawal, marked preoccupation with work related matters and moodiness 'drove her crazy' - they separated in 2001."

66. I am asked to believe that the plaintiff when dealing with police officers after he left the police service, had marked anxiety in response to contact with them, or any reminder of his police service. I must point out the obvious, that his work involved his appearing in court at Taree almost daily, dealing with a police prosecutor, and with police witnesses in contested matters. I would point out that he did his job so effectively that he was invited by the Chief Magistrate to take an appointment to the Bench, which he was successful in earning. His work as a magistrate in the Local Court required him to deal everyday with a police prosecutor, and dealing with police officers regularly giving evidence before him. Up until certain things happened when he was a magistrate, the plaintiff did not seek any medical treatment. Nor did he have any prescribed medication other than his mother’s Valium which he took for two months at the beginning of his work at Taree, in November and December 1998. This brings into sharp relief a major problem with the plaintiff’s case, its inherent implausibility.

The plaintiff as a Magistrate

67. The plaintiff’s experience on the bench was both short and unhappy. It was short and unhappy because he misbehaved. The circumstances of what happened to the plaintiff are best set out in a report of Dr Bruce Westmore, a forensic psychiatrist, who examined the plaintiff on 26 June 2002. Under the heading, “Presenting complaint”, Dr Westmore records this:

“I asked him of the history leading up to his current difficulties. He said for 20 years he was ‘Part of the process as a police prosecutor and a defence counsel for the Aboriginal Legal Service’. He said that it has always been important for him ‘that justice be done’. He said he became involved in matters to ensure that injustices did not occur. He said he left the police service and went into witness protection after he reported that 100 grams of amphetamines had gone missing. He said after he made that report he had problems with other officers.

He was then offered the job with the Aboriginal Legal Service and he decided that the Police Service was not something he wanted to be a part of. He said he was disappointed with the way he was treated by the police service after he reported something he felt had been a serious problem in the workplace.

He said he worked hard when with the Aboriginal Legal Service and he caught a number of police officers telling lies. He reported this and the police officers were investigated. He said he subsequently had some problems with the police although he said those problems did not affect his objectivity when at work.

He said in July 2001 he was appointed as a magistrate. He said he was hesitant about taking the position on because his wife had come from the country and she did not want to live in Sydney and he did not want her to leave him.

At this point in the interview he became quite tearful and distressed. He appeared to be very embarrassed about this emotional release and he attempted to contain it and hide it although intermittently throughout the rest of the interview, particularly when talking about his wife, he again showed signs of tearfulness and distress.

He said just prior to 11 September 2001 his wife told him she was leaving him. He stated, ‘It distracted me quite a bit but I kept working’. On 12 September 2001 he started the case which is now to be the subject of some type of inquiry. He said he had been up all the previous night watching the tragic events unfold in the United States.

In the case in which he was involved, the defendant had allegedly held up a police badge to two little girls and asked them if they had drugs in their possession. He said it was also alleged that this particular person took or wanted to take the girls to some flats.

He told me the man was charged with [personating] a police officer, the penalty for this offence was he thought at the time about $600.

He said he formed the view that the police were prosecuting the man inappropriately. He said he believed he knew the relevant law at the time and said he felt he understood the potential seriousness of the accused person’s behaviour regarding the little girls. He told me he had information about a number of other charges being faced by the accused, these matters related to alleged sexual offences.

He told me he could not understand why the prosecutor was following up the impersonate a police officer matter in contrast to the possible charge of enticing the girls away for whatever purpose.

He said he started to wonder if the DPP office had ever seen the facts in this particular case. He told me he did not say anything at the time but as the case went on he felt the prosecutor did not understand the Evidence Act. He told me it was a two day hearing and he was troubled overnight. He had a lot on his mind at the time, in particular his difficulties at home. He said he discussed the matter with his wife who became quite upset about the facts of the case. He felt this occurred because she was unable to have children. He then told me he and his wife had been trying for some time to fall pregnant. He said his wife felt he should do something about the situation at work.

He went to work the following morning, he was troubled again. He said he has been a magistrate for about four weeks in the courts at the time. He stated, ‘I honestly did not know what to do…’ He said he was facing a number of pressures. He said there were pressures and he felt he should not do anything in court which might lead to him being disqualified or anything which would waste the court’s time. He said he just "wanted to do everything so right, at the time I was in a quandary".

He said he knew if he brought his concerns up in court, the prosecutor may be questioned at a later time as to why he did not proceed with the more serious charges. He said, in addition, if he brought his concerns up in court, he may be disqualified.

He told me he then contacted the police prosecutor by phone and asked him to come to his chambers. He said he wanted to suggest to the police prosecutor that that person get advice about this particular case. He said he wondered if the accused man was a paedophile.

He told me the prosecutor then told him things he should not have told him. He said he had given the prosecutor his views in private, but the prosecutor told him of other things about the man charged. He said he wanted the prosecutor to get advice. The prosecutor left his office.

He told me about 20 minutes later the prosecutor returned, he appeared to be agitated and worried. The prosecutor told him that he had spoken to the DPP about the matter. The DPP was upset that Mr Day had spoken to the prosecutor without the defence being present.

He said at the second meeting the prosecutor also wanted to shut the door, he seemed nervous and upset. Mr Day said he knew that calling the prosecutor into his chambers was not the proper thing to do in the first place. He said he did not want to be seen to be doing the wrong thing by bringing the matter up from the bench.

Following the meeting with the prosecutor described earlier in this report, he said he spoke to other magistrates for about 15 minutes, asking their advice as to what he should do. He said they advised him to put his concerns on the record. He told me he was advised he could not do anything out of court. He said he knows this or he knew that but he did not want to do anything in court either which might disqualify him.

He said he subsequently returned to court and he put on record what some of his concerns were. He told me he felt he had panicked.

135. There are dicta in Industrial Relations Commission in Court Session which point in the same direction. For example, in SASTC v Daykin [2002] NSWIRComm 124, a joint judgment of the President Wright J, the Vice President Walton J (as his Honour then was) and Peterson J said this commencing at [23];

23 Nevertheless, the question for determination raises consideration of the way in which the statute operates in both contexts, superannuation simpliciter and hurt on duty. Mr. Menzies for the applicant submitted that while the usual case was that a member with a short term incapacity would not seek to access superannuation, this was not to say that the statute precluded that course.

24 We consider that an approach to the PRS Act which attributed to its purposes such short term remedies would be to misapply the statute. In Adams v State Authorities Superannuation Board, Cullen J. described infirmity, the basal aspect of the statute whether it be a long or short term condition claimed to justify a certificate, as “a physical or mental condition which prevents a member of the Police Force, for the foreseeable future, from discharging the duties of a police officer”. This, we think, correctly portrays the primary intention of the PRS Act. While in theory an applicant may be free to bring a claim under this Act in respect of an obviously short term condition which might prevent the member working, the need to establish an infirmity with the longer temporal connotation means that such an application would be unlikely to be able to satisfy the Act’s requirements.

27 …Where the incapability is said to derive from two or more independent conditions, there is simply no point in specifying some relatively trivial condition which itself could not lead to incapability in the statutory sense. For example, a depressive illness of such permanence as to satisfy the requirements may be joined with loss of a leg in a police motor vehicle accident. Assuming that the latter would create a statutory incapability, that example may be contrasted with one where the second condition is a crushed finger, similarly gained, but the injury being short term only. If these two situations are considered without reference to the depressive illness, the contrast is stark. While the crushed finger would have relevance to considerations of a workers' compensation kind, they have no relevance to superannuation based on the notion of relatively permanent incapability. It cannot constitute an infirmity within the meaning of the statute.

There is a much more succinct dictum elsewhere in the case law generated by the IRC in Court Session where it is merely pointed out that the court must consider the fact that the Act is talking about a superannuation scheme, and not, for example, a short closed period of incapacity.

Medical opinions

137. I turn then to the formulation of the various medical practitioners. The Roman playwright Publius Terentius Afer, usually known in the English speaking world as Terence, in his comedy, Phormio, said this;

“Quot homines, tot sententiae; suus cuique mos”

that can be freely translated as “so many men, so many sentiments, each has his own way.” However the word, sententia, can mean a way of thinking, and also an opinion. May I observe quot medici tot sententiae: there are as many opinions as there are doctors. I do not know what the collective noun is for a plethora of psychiatrists; perhaps it might be a posse of psychiatrists. In any event, we have the usual conflicting number of opinions.

138. The first, of course, is the opinion not of a psychiatrist, but of Dr Robert Miller, the general practitioner, who wrote a certificate on or about 21 August 1998. He diagnosed, “Acute anxiety and depressive reaction”. Using the terminology of DSM, that appears to be the diagnosis of an adjustment disorder with anxiety and depression.

139. Dr Bruce Westmore, following upon his examination of 26 June 2002 diagnosed a major depressive illness, with an alternative diagnosis of an adjustment disorder with depression. He believed on that occasion that it was due to the events of September 2001 and their aftermath.

140. Dr Klug who saw the plaintiff on the following day, 27 June 2002, diagnosed a major depressive disorder due to the events of September 2001 and their aftermath. Dr Milton who saw the plaintiff on 2 July 2002, provided no diagnosis because he did not believe the plaintiff was psychiatrically disturbed, but was merely displaying a normal emotional response.

141. When Dr Klug saw the plaintiff on the second occasion, that is on 13 March 2008, he diagnosed a chronic adjustment disorder with mixed features of anxiety and depression. He believed that was related to the police work-related stressors, of which the plaintiff told him on that day. However the doctor said that the plaintiff was predisposed to developing a major depressive illness, no doubt to justify the diagnosis provided by Dr Klug on 27 June 2002. Dr Edwards who saw the plaintiff on 20 March 2009, said that on the last day of service, the plaintiff had the psychiatric disorder of chronic adjustment disorder with mixed anxiety and depressed mood. However he now diagnosed the plaintiff’s condition as being a generalised anxiety disorder with depressive features. As I have earlier indicated, a fair reading of the doctor’s opinion appears to indicate that he related the development of the second condition to the initially diagnosed condition.

142. Dr Dunn on each occasion that he provided a report, 10 September 2009 and 3 May 2016 provided no diagnosis because like Dr Milton he appears to express the view that the plaintiff’s condition was the result of a normal emotional response, or emotional impulse, that he left the police service because he was angry and disillusioned, not because he was mentally ill.

143. Dr Bertucen diagnosed that in September 1998 the plaintiff was suffering from an adjustment disorder with features of anxiety and depressed mood, but the plaintiff had not been incapacitated for any more than three years after he left the NSW Police.

144. Dr Westmore, who saw the plaintiff for a second time on 29 November 2016 confirmed that the plaintiff was suffering from a major depressive disorder in 2002, but now diagnosed an adjustment disorder, which is both episodic and transient. The diagnosis of episodic and transient means that it comes and goes. Why it should come and go is unclear. For how long a episode may last is also unclear. How does one know whether it was not present in 1999, 2000 and 2001 prior to the plaintiff’s the stressors that the plaintiff experienced in September of 2001?

Disposition

145. I accept that the plaintiff was incapacitated by reason of an adjustment disorder with anxiety and depression during the period certified by Dr Robert Miller. I accept that the plaintiff may have remained labouring under that incapacity until he took up work with the ALS at Taree in November 1998. However, I am not persuaded that the symptoms persisted beyond the end of 1998.

146. When I consider the words, “At the time of the member’s resignation”, the words are apt to mean not merely on the day that he resigned, or the day after he resigned, but a period of time of an indefinite nature as adverted to by their Honours in the Industrial Relations Commission. Their Honours dicta, I respectfully adopt. It follows that the appeal is unsuccessful, and that I ought confirm the decision of the defendant made on 30 April 2009.

Notice

147. However, before making the order, I should refer to one other issue which has caused a major legal debate. At the time that PSAC made its decision, a submission was made to it by Ms Cathy Williams on behalf of the administrator of the Police Superannuation Fund, an organisation known as Pillar Administration. Her qualification(s) is/are unknown. The submission is found in exhibit G. It lists on the first page the medical condition claimed, which was a “Chronic adjustment disorder”. There was then a box asking whether the NSW Police confirmed injury date after November 1976. Ms Williams completed that this manner;

“Yes - refer NSW Police correspondence - date of notification of injury - 19/11/08”.

Of course no injury was reported on 19 November 2008. What did happen on that day is that the NSW Police Service wrote a letter to the defendant’s administrator. The substance of that letter is this;

“Our records indicate that the former member reported off duty on sick leave from 21.08.1998 to 18.09.1998 for an ‘anxiety/depression’ condition. No formal claim was ever lodged. A thorough search was conducted to locate the former member’s medical file to no avail. Papers have been retrieved from the former member’s personnel file.

Accordingly, the NSW Police Force accepts that the former officer has complied with the provisions of the Act in that he notified the commissioner prior to his exit, and within six months of the injury occurring.”

148. The second paragraph does not logically follow from the first. There is a non sequitur. The letter has been signed by Ms Wendy Banning of the Medical Discharge Coordination Unit of the Compensation and Insurance Section of the NSW Police Service. Again, Ms Banning’s qualifications, if other than that of a claims clerk, are unknown. At the same time, as penning that letter, Ms Banning completed a questionnaire that had been sent by the defendant to the Compensation and Insurance Unit in which it was stated that there was a claimed injury of anxiety and depression and gave a date of injury of 21 August 1998 and said that the Commissioner had been notified on 21 August 1998.

149. As the law currently stands, the plaintiff was required to notify an injury giving rise to the infirmity which is claimed to be the basis of his entitlement to a hurt on duty pension. The mere notification of symptoms is insufficient. The history of the case law in that regard can be found in exhibit 4. On page 3 of the submission, the following is stated;

“PSAC’s decision predated the judgment in SASTC v Hazlewood [2009] NSWIRComm 157 (Hazlewood), which confirmed that STC has to be satisfied about whether notice had been provided, but said that “STC is unable to go behind advice provided by the commissioner as to whether or not an injury had been notified. (Para.33, also para.100).

However, in June 2012, the Full Bench of the Industrial Court decided in Woollard v SASTC [2012] NSWIRComm 51 (Woollard no. 1), that its decision in Hazlewood was incorrect in that STC was not obliged to accept advice of the Commissioner of Police concerning notice of injury but could make its own investigation before making its decision as to whether notice in accordance with s 10B(2) had been provided. For completeness, in the Woollard Court of Appeal decision in 2014, the NSW Court of Appeal decided that the test for the statutory notice of injury was that the notice provided must have been notice of more than ‘symptoms which may have been consistent with disease’.

On 9 June 2009, Mr Day lodged a dispute with PSAC’s decision of 30 April 2009 and requested that his application be referred to the STC disputes committee for reconsideration. The dispute was not heard by the STC dispute committee (which become the MSC), although it remained on foot with STC and Mr Day’s solicitor corresponding over the period 2009-2017 concerning information required before the dispute could be put to the MSC. Following the Court of Appeal decision in SASTC v Rossetti [2018] NSWCA 68 STC decided that it would unfair to just tell Mr Day that NSC no longer had any jurisdiction to hear his dispute, and that he was out of time to appeal PSAC’s 2009 decision to the District Court, given STC had treated his dispute as still being on foot until the Court of Appeal decision. So, STC, by letter dated 14 January 2009, renotified Mr Day of PSAC’s decision of 30 April 2009 and also of the correct avenue (as per the Court of Appeal decision) to appeal the decision (i.e. to the District Court).”

150. The defendant filed a defence which contains this plea;

“5. In answer to the whole of the plaintiff’s application, the defendant asserts that the plaintiff did not notify the Commissioner of Police within the meaning of s 10B(2)(a) and 10B(2)(a1) of the Act in force at the date of resignation.”

That caused the plaintiff to file a notice of motion on 20 May 2020 seeking that plea be struck out. When the matter came before me, I ordered that the hearing of the notice of motion be held at the same time as the hearing of the substantive appeal. In the interim, that is between the time of the notice of motion and the commencement of the hearing, the defendant on 3 July 2002 determined under s 10B(2)(a) of the Act that the plaintiff did not notify the Commissioner of Police before his retirement from the New South Wales Police Force, and within six months of receiving the injury, of an injury which caused the claim infirmity of mind of chronic adjustment disorder of mixed anxiety and depressed mood. That was communicated to the defendant by letter of 3 July 2002, which is exhibit 5. I granted leave to the plaintiff to file in Court a Reply.

151. The matter was the subject of an extensive written submission by the plaintiff, MFI 8. Involved in the argument is my decision in Johnson v SAS Trustee Corporation [2019] NSWDC 925. In that case, the defendant had made a decision under s 10B(2)(a), but no decision under s 10B(2)(b). Nevertheless, the plaintiff in that case asked me both to overrule the defendant’s decision under s 10B(2)(a) and to make a finding that the plaintiff was suffering from an infirmity of mind from discharging the duties of his office at the time of his resignation. I considered the relief sought between [4] and [11] of my decision. The relevant part is this;

6. Section 10B of the Act, as in force at the date of the plaintiff’s resignation, provided in subs (2):

“An annual superannuation allowance shall not be granted under section 10 to a former member of the police force who resigned or retired unless:

(a) the former member notified the Commissioner of Police before the member’s resignation or retirement and within 6 months of receiving the injury which has caused the member’s infirmity of body or mind, of that injury, and

(a1) where the regulations so require, the notification was in or to the effect of the prescribed form, and

(b) STC (having regard to medical advice on the condition and fitness for employment of the member) has certified that the former member would have been incapable, from that infirmity of body or mind, of discharging the duties of the member’s office at the time of the member’s resignation or retirement.”

In the current case the defendant made a decision under s 10B(2)(a) of the Act. The defendant has yet to make any decision under s 10B(2)(b) of the Act.

7. The relief sought in the statement of claim and in the plaintiff’s outline of submissions is therefore misconceived. The only determination made by the defendant concerns the giving of notice, and it is only an appeal from that decision that the Court can entertain. This Court is granted jurisdiction by s 21 of the Act. The relevant parts of s 21 are these:

“(1) A person who considers himself or herself aggrieved by:

(a) a decision made by STC on a matter that arises under this Act by reason of a member of the police force being hurt on duty, or

……………………………………………

may, within the period of 6 months after the person is notified of that decision, apply to the District Court for a determination in relation to that decision.

(4) The District Court, after considering an application under this section, may make a determination that the decision of STC… or in respect of which the application was made:

(a) be confirmed, or

(b) be set aside and replaced by a different decision made by the District Court.

(5) The District Court shall not make a decision referred to in subsection (4)(b) unless STC… could pursuant to this Act make that decision.”

I can only make a determination about a decision that has been made by the defendant. I cannot make a determination about a decision which the defendant has not made. As I pointed out to Counsel for the plaintiff during addresses, if the plaintiff wished the defendant to make a decision under s 10B(2)(b) the appropriate relief was to seek mandamus from the Supreme Court. The plaintiff has not attended to that.

8. However I express the view that it would have been preferable if the defendant could have made a decision under s 10B(2)(b) as well as its decision under s 10B(2)(a), because it may have shortened the length of this litigation and may have obviated a further piece of litigation should this litigation be successful, in the sense that the plaintiff obtain the relief that he seeks and the defendant then makes another decision by which the plaintiff felt aggrieved, there would be a further application to this Court. Furthermore it is not uncommon for decisions of the defendant to be made which do not accord entirely with an application made to it by a former member of NSW Police Force and, if such should occur, the plaintiff would then have an opportunity of seeking to establish whether an appropriate notice had been given of some other certified infirmity, resulting from some other injury of which the plaintiff may have given notice.

9. As I said in Page v Commissioner of Police(No 2) [2012] NSWDC 137 at [119]:

“There is before me an irrefragable fact. I perhaps ought to have said that there are before me two irrefragable facts but only one of them is presently relevant. The first irrefragable fact is that the plaintiff has the condition of PTSD. The second irrefragable fact, the one not presently relevant, is that at the time that he left the Police Force the plaintiff was incapable of personally exercising the functions of a police officer referred to in s 14(1) of the Police Act 1990. The second irrefragable fact comes regularly before me in applications under s 10(1A) of the Act where the STC, rather than the Commissioner of Police, is the defendant. I have had cause to observe over the best part of 18 years that sometimes one or both of those irrefragable facts is completely erroneous or completely contrary to the weight of the evidence.”

10. For the purpose of deciding the current application, I must presume that the plaintiff will be successful in obtaining a finding from the defendant that the plaintiff would have been incapable from either chronic PTSD or major depression, or both, of discharging the duties of his office at the time of his resignation from the NSW Police Force.

11. The plaintiff relies upon two documents which could be said to be the relevant notice. The first is a "Claim for Hurt On Duty Benefits", being a P124, signed by the plaintiff and dated 27 September 1994. That is a four page document, albeit that the fourth page is completely blank. It is exhibit V. The document, like many, many documents in these proceedings, is also annexed to the plaintiff's affidavit (exhibit N to his affidavit), which is exhibit A, and also forms part of one of the many annexures to exhibit TT, the claim for the hurt on duty pension. The second document relied upon by the plaintiff as notice is a report by Inspector G M Winson, the duty officer at the Wagga Wagga Police Station, dated 11 August 1997, which is headed, "Support for police following attendance and action at fatal motor vehicle accident, Yerong Creek on 9 August 1997". That is exhibit QQ and is annexure Q to the plaintiff's affidavit which is exhibit A. It is also, of course, an annexure to exhibit TT.

If my decision be correct, then the only formal decision made by the defendant was under s 10B(2)(b).

152. However the defendant only made a formal decision under s 10B(2)(a) on 3 July 2020 and notified the plaintiff on that date, and the plaintiff has six months from that date to consider whether he be aggrieved by the decision of the defendant made on 3 July 2020. In the statement of claim, the plaintiff does not seek that the Court make any ruling on the defendant’s decision under s 10B(2)(a). So, in my view, it is not open to me to do so. In any event, because of the finding I have already announced, the exercise has become otiose, which is a small mercy for us all.

Order

153. For those reasons I confirm the decision of the defendant made by its delegate, PSAC, on 30 April 2009.

**********

Amendments

21 July 2020 - Stylistic error in coversheet amended.

22 July 2020 - [111] Change "analysis of the facts" to "an analysis of the facts".

Decision last updated: 22 July 2020