Guff v The Commissioner of Police (No 1)

[2007] NSWDC 289

CITATION:	Guff v The Commissioner of Police (No 1) [2007] NSWDC 289
HEARING DATE(S):	15 October 2007 - 25 October 2007
EX TEMPORE JUDGMENT DATE:	15 October 2007
JURISDICTION:	Civil (Residual Jurisdiction)
JUDGMENT OF:	Neilson DCJ at 1
DECISION:	Defendant's application to amend his defence refused
CATCHWORDS:	Application under Police Regulation (Superannuation) Act 1906 - Defendant seeks leave to amend his defence to raise a limitation provision in section 21 (appeal to be made within 6 months of defendant's decision as to whether death of policeman was caused by his having been hurt on duty) - Two groups of plaintiffs. First group: children of deceased from former marriage. Second group: wife and children to whom deceased stood in loco parentis - First group appealed within time (not having been notified of defendant's decision) - Second group subsequently joined as defendants but subsequently made plaintiffs - Leave to amend defence made on first day of hearing - Leave refused - Uniform Civil Procedure Rules 14.14(2), 14.14(3) - Civil Procedure Act 2005, section 58 and section 64(2) - Clough v Frog (1974) 48 ALJR 481 - Consideration of former practice and procedure under Workers Compensation legislation
LEGISLATION CITED:	Police Regulation (Superannuation) Act 1906 Civil Procedure Act 2005
CASES CITED:	Clough v Frog (1974) 48 ALJR 481
PARTIES:	C. Guff, L. Guff, E. Guff, M. Guff by their tutor J. Marshall (First Plaintiffs) D. Guff (Second Plaintiff) S. Erichsen by her tutor D. Guff (Third Plaintiff) D. Erichsen by her tutor D. Guff (Fourth Plaintiff) The Commissioner of Police (Defendant)
FILE NUMBER(S):	RJ 130/05
COUNSEL:	P Stockley (First Plaintiffs) P Barnes (Second, Third and Fourth Plaintiffs) R Hanlon (Defendant)
SOLICITORS:	Coleman & Greig (First Plaintiffs) Baker & Edmunds (Second, Third and Fourth Plaintiffs) Henry Davis York (Defendant)

JUDGMENT

1 HIS HONOUR: This is an application by the defendant to amend his defence. The amendment sought is the addition of the following paragraph:

“The second, third and fourth plaintiffs have not appealed within six months of the notification of the decision of the Commissioner of Police made on 24 August 2004, as required by s 21 of the Police Regulation (Superannuation) Act, 1906.”

2 It is necessary to consider some factual matters. On 17 August 2004, the late David James Guff died. On 24 August 2004, some seven days later, the Commissioner of Police, by his delegate, determined that the death of the late David James Guff was not caused by his having been hurt on duty. That decision appears to have been communicated to the SASTC. On 5 October 2004 the SASTC wrote to the second plaintiff, Mrs Denise Guff, a letter providing information:

“...for your guidance in considering the entitlements that are due under the Police Regulation (Superannuation) Act 1906, as a result of the death of your husband.”

3 Under a heading “Superannuation Entitlements of Relatives or Dependants of Police who die as a result of being Hurt on Duty”, the following two paragraphs occur:

“Under this section [section 12] the Police Superannuation Advisory Committee may authorise the payment to or on behalf of the spouse, (including a de facto partner whose circumstances at all relevant times satisfy the requirements of the governing legislation) father, mother or children, or any other relatives wholly or partly dependant on your late husband at the time of his death, of an annual superannuation allowance of at least 55 per cent, or up to 62.5 per cent, the salary of office at date of death. The additional rate may not exceed 7.5 per cent depending on the degree of risk (if any) peculiar to police work to which the member was required to be exposed at the time of the injury resulting in death.

Section 12A of the Act provides, where a member of the Police Service dies hurt on duty leaving a dependent child, the Committee may pay to the spouse or de facto partner of that member or the guardian of any such child an annual allowance in respect of that child equivalent to the amount of the weekly payment prescribed by Division 1 of Part 3 of the Workers Compensation Act 1987. This allowance is only paid while that child is under the age of eighteen years, or during any period between age eighteen and twenty one whilst receiving an education at an approved School, College, or University.”

4 Much further on in the lengthy letter is a statement that the SASTC had received a certificate from the Commissioner of Police’s delegate, stating that the death of the late Senior Constable Guff was not caused by his having been hurt on duty. The letter then goes on to point out that should Mrs Guff be aggrieved by that decision she could apply to this court within six months for a determination. The second plaintiff’s former solicitor, Mr David Cooper, acknowledged that the second plaintiff received that letter from the SASTC, presumably in approximately the week after the letter was sent. One can see therefore that Mrs Denise Mary Guff had until approximately 12 April 2005 to file a statement of claim commencing an appeal, pursuant to s 21 of the Police Regulation (Superannuation) Act 1906.

5 A statement of claim was filed in this matter on 18 March 2005, not by Mrs Denise Mary Guff, but by Jennifer Louise Marshall, a former wife of the late Senior Constable Guff. She filed that statement of claim on behalf of her children by her former husband, claiming them to have been dependent upon the deceased at the time of the deceased’s death. From Exhibit 2-2, an affidavit of Annette Therese O’Brien sworn last Friday, it would appear that Jennifer Louise Marshall had never been formally notified by the Commissioner of Police, or by the SASTC, of the Commissioner’s decision that her former husband’s death was not caused by his having been hurt on duty. It is not alleged that the ordinary statement of claim filed on 18 March 2005 was barred by the limitation period fixed by s 21 of the Police Regulation (Superannuation) Act 1906.

6 The statement of claim first came before the Court on 5 September 2005, at a callover conducted by me. Ms Warda appeared for the plaintiffs. Mr Fleming, a solicitor, appeared for the Commissioner of Police, and Mr Hooper, solicitor, appeared for Denise Mary Guff and her two children. Those children are not the natural children of the deceased. They are children to whom the deceased stood in loco parentis. They would appear to be children of Denise Mary Guff by a former relationship.

7 In accordance with the usual Workers Compensation practise I ordered that Denise Mary Guff be joined as a second defendant, and that her two children be joined as the third and fourth defendants, and I ordered the plaintiff to file and serve an amended statement of claim within twenty eight days. Under the Workers Compensation Acts as they had been administered in the Compensation Court of New South Wales, the practise had been, since 1926, to join parties who also claimed to be dependent upon a deceased worker as respondents, as their interest was not the same as the applicant for compensation, because if the death of the worker was held to be compensable there would have to be an apportionment of the lump sum compensation payable between the applicant and the other dependents who had been made respondents. The practise was clearly that the interests of the applicant and the added respondents were not the same because although they were both interested in obtaining a finding that the death of the worker was compensable, their interests then differed in that they would have to contest the quantum of compensation payable to each of them. At the time I made the order joining the parties who are now the second, third and fourth plaintiffs as second, third and fourth defendants, I failed to realise that when this matter came before the Court the only issue was the compensability of the late Senior Constable’s death, and matters relating to quantum would have to be then determined by the SASTC, which decisions could then give rise to a further appeal under s 21 of the Police Regulation (Superannuation) Act 1906.

8 The matter was then before the Court on 5 December 2005 when a hearing date of 13 June 2006 was fixed. The matter also came before the Court on 6 March 2006 when the hearing date was confirmed. However, by a notice of motion heard on 18 May 2006, the hearing date was vacated by consent and listed for further directions on 25 May. There is no note of what may or may not have happened on 25 May 2006. It may be that Judge Armitage who had made that order was not available on that day. The matter came back before his Honour on 9 June 2006, when it was stood over for further directions on 30 June 2006. However, his Honour made this notation on the file:

“Defendants other than first defendant are ascertaining whether they received written notice of Commissioner’s Decision, so that time limit for filing of SOC runs”.

9 The matter came back before his Honour on 30 August when he set the matter down for hearing on 19 March 2007. On 9 March 2007 the matter came before me, when, on the application of the second, third and fourth defendants, the hearing date was vacated, and the matter was listed for callover on 12 June 2007. On 12 June the matter could not be given a further hearing date because the plaintiff required further medical evidence.

10 On 13 August 2007 Her Honour Judge Ashford listed the matter for hearing today.

11 The matter came back before me on 25 September 2007 on a notice of motion filed by the new solicitor for Denise Mary Guff and her children. On that occasion Mr Barnes of counsel was kind enough to point out to me that the procedure that I had adopted on 5 September 2005, was inappropriate as on the current application there was no potential conflict of interest between Denise Mary Guff and her children and Jennifer Louise Marshall and her children. Accordingly I acceded to the motion filed on behalf of Denise Mary Guff and her children and pursuant to rule 6.29 I ordered that the second, third and fourth defendants be removed as defendants and pursuant to rule 6.19 I ordered that the former second defendant, be the second plaintiff, the former third defendant be the third plaintiff, and the former fourth defendant be the fourth plaintiff. I ordered that costs of the motion be costs in the cause.

12 The matter came before me this morning for hearing and, to the surprise of everybody, an application was made on behalf of the defendant to remove Denise Mary Guff and her children, as plaintiffs. That application turned into the application to amend the defence as I said at the commencement of these reasons for decision.

13 One further thing should be stated about what occurred before his Honour Judge Armitage on 9 June 2006. Paragraph 20 of the affidavit of Annette Therese O’Brien, which is Exhibit 2-2, says this:

“On 17 July 2006 the matter was listed for further mention in the District Court before His Honour Judge Armitage. On that occasion the first defendant submitted that Denise Mary Guff was out of time and the court had no jurisdiction. It was noted that the third and fourth defendants would not be prejudiced as Denise Mary Guff could be appointed their tutor.”

14 I am unable to ascertain from the court file whether the matter was before the court on 17 July 2006. It may be that that date is mistake for the 9 June 2006, or it may be that Judge Armitage made orders without having them recorded on the court file.

15 Suffice it to say, that whatever was said to his Honour his Honour was clearly advised that the interests of the children of Denise Mary Guff would not be prejudiced if their mother’s claim was held to be barred by the statute.

16 I should point out that quoted two initial paragraphs of the letter of the SASTC to Mrs Denise Mary Guff of 5 October 2004 to point out that the words used in the letter do not speak of children to whom the deceased stood in loco parentis, nor to children to whom the deceased was a step-parent. There is reference to the children of the deceased and “any other relatives”, and a layman might be forgiven for thinking that it was referring to the natural children of the deceased Senior Constable.

17 Proceedings in the special statutory compensation list are to be commenced by statement of claim. Where proceedings are commenced by the filing of a statement of claim the defendant must file a defence. Under the Uniform Civil Procedure Rules, rule 14.14(2), the following is provided:

“In a defence or subsequent pleading, a party must plead specifically any matter:

(a) that, if not pleaded specifically, may take the opposite party by surprise, or,

(b) that the party alleges makes any claim, defence or other case of the opposite party not maintainable, or,

(c) that raises matters of fact not arising out of the proceeding pleading.”

18 Sub rule (3) lists a number of matters which must be specifically pleaded. They include any “statute of limitations”. If it is alleged that the plaintiff’s claim is barred by being outside the six month period in which a party has a right to appeal, the defendant must plead that in the defence that it filed. The defendant filed his first defence on 2 December 2005 and raised no limitation defence. An amended defence was filed on 20 September 2007, less than a month ago, and raised no limitation defence. When we arrive at court this morning the defendant seeks to agitate a limitation defence. It is in those circumstances that the defendant seeks to plead the defence which it has. The court’s power to amend pleadings is contained in s 64 of the Civil Procedure Act 2005. Section 64(2) is in the following terms:

“Subject to s 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings, and avoiding multiplicity of proceedings.”

19 Section 58 contains a heading “Court to Follow Dictates of Justice”. Four propositions have generally been regarded as defining the limits of the general discretion to grant leave to amend. They are:

“1. The proposed amendment must not be so obviously futile that it would be liable to be struck out if it had appeared in the original pleading.

2. The application for leave to amend must be made for a proper purpose.

3. The amendment must not cause prejudice to the other party that cannot be compensated by appropriate consequential orders, including costs orders.

4. The amendment must not be contrary to the interests of the administration of justice.”

20 As in many matters of this nature it is appropriate to ask oneself the old question, cui bono - what is the purpose of making this amendment? The first defendant, the Commissioner of Police does not pay any hurt on duty benefits himself; they are paid by the SASTC out of the Police Superannuation Fund and out of consolidated revenue of the State of New South Wales. If the late Senior Constable’s death is held to be compensable, there may become payable a lump sum of compensation which would have to be divided between the children represented by Jennifer Louise Marshall and between Denise Mary Guff and her children. No additional lump sum would be payable and the contest would be between the dependents over the corpus of the lump sum. It may be that there will be additional weekly payments payable to the children, but again they would be payable not by the Commissioner of Police but by the SASTC, out of the funds to which I have referred.

21 The Commissioner of Police has submitted that it would protect him from having to pay two sets of costs in the event that the first plaintiff is successful in proving that the deceased’s death was compensable. In other words, the only direct benefit to the first defendant, the Commissioner of Police, is a reduced exposure to costs. The detriment to the second to fourth plaintiffs would be very much greater. Firstly they have been in these proceedings as either a defendant or a plaintiff for over two years, without any defence being pleaded against their claim by the first defendant, and without there being any motion seeking to strike out their involvement in these proceedings on the basis that they had not commenced an appeal within the six months prescribed by s 21 of the Police Regulation (Superannuation) Act 1906. Furthermore, it could then be argued that they would be precluded from joining in any compensation payable if the deceased’s death is held to be compensable. Furthermore, the first plaintiff herself might be disadvantaged by not having available to call any evidence that Denise Mary Guff herself might give about the deceased’s psychiatric condition, which appears to have led to his death. Denise Mary Guff is separately represented by a solicitor and barrister and presumably the solicitor and counsel for the first plaintiffs have not had an opportunity of interviewing her for the purpose of adducing evidence.

22 The first defendant has made much of the distinction between the second to fourth plaintiffs, having been initially joined as second to fourth defendant, and of the only recent change. That distinction is one of form rather than of substance: the reason for joining them in the first place was because they were claiming to be dependent upon the deceased. An iota of commonsense would tell anybody that they were just as interested as the first plaintiff in proving that the death of the late Senior Constable Guff was caused by his having been hurt on duty. At the time that Denise Mary Guff and her children were joined as defendants there was no demur by the first defendant. At the time the status of Denise Mary Guff and her children was changed from being defendants to being plaintiffs there was no demur by the defendant. There was still no demur by the defendant in its amended defence filed on 20 September 2007, less than a month ago.

23 In Clough v Frog (1974) 48 ALJR 481, and a number of other cases referred to in Ritchie's Service, it was pointed out that as a general rule leave should be granted for an application for leave to amend a pleading if it is made “in a timely manner”. This application is not made in a timely manner at all. It is made on the morning of a hearing estimated to last for five days. The only direct benefit to the first defendant is a benefit in costs, and even if I were to accede to the defendant’s application I would still have to order the first defendant to pay the costs of the second, third and fourth plaintiffs, because of the first defendant’s inexcusable delay in raising the limitation period. However, in my view it is not in the interests of justice that that occur. It is in the interests of justice that the substance of this matter, the compensability of the death of the late Senior Constable Guff, be agitated and finally determined with the benefit of all available evidence, and for the benefit of all available claimants.

24 The application for leave to amend the defence is refused.

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