Murray v Commissioner of Police

[2004] NSWCA 365

CITATION:	Murray v Commissioner of Police [2004] NSWCA 365
HEARING DATE(S):	30 September 2004
JUDGMENT DATE:	8 November 2004
JUDGMENT OF:	Giles JA at 1; Ipp JA at 2; Tobias JA at 3
DECISION:	(a) Appeal allowed; (b) Set aside the orders made by Ashford CCJ on 19 September 2003; (c) Order that the matter be remitted to the District Court for further determination in accordance with the reasons of this Court on condition that the evidence on that further determination be limited to the evidence before the primary judge and that no further evidence shall be adduced except by leave of a judge of the District Court; (d) Order that the costs of the proceedings before the primary judge abide the further determination of the matter by the District Court; (e) Order that the respondent pay the appellant's costs of the appeal
CATCHWORDS:	WORKERS COMPENSATION - Error of law - Hurt on duty - Whether caused during course of employment - Irrelevant evidence - No evidence to support primary judge's finding on cause - Remit to District Court - ISSUE ESTOPPEL - Decision of IRC - Judicial determination - Whether Commissioner of Police a privy of the SAS Trustee Corporation - No common interest -
LEGISLATION CITED:	Compensation Court Act, 1984 Compensation Court Repeal (Transitional) Regulation 2003 Compensation Court Repeal Act, 2002 Courts Legislation Amendment Act 2004 Industrial Relations Act 1997 Police Regulation (Superannuation) Act 1906 Police Service Act 1990 Workers Compensation Act, 1987
CASES CITED:	Administration of the Territory of Papua and New Guinea v Darea Guba (1973) 130 CLR 535 Blair v Curran (1939) 62 CLR 464 ICM Agriculture Pty Limited v Perry [2002] NSWCA 257 Kuligowski v Metrobus [2004] 78 ALJR 1031 Lambidis v Commissioner of Police (1995) 37 NSWLR 320 Maurici v Chief Commission of State Revenue (2001) 51 NSWLR 673 North Broken Hill Limited v Tumes (1999) NSWCCR 412
PARTIES :	John David Murray Commissioner of Police
FILE NUMBER(S):	CA 40123/04
COUNSEL:	A: Mr R Seton SC / Mr M Walsh R: Mr R Blume
SOLICITORS:	A: Oates & Smith, Sydney R: Legal Services, NSW Police, Sydney

LOWER COURTJURISDICTION:	Compensation Court
LOWER COURT FILE NUMBER(S):	CC 1812/99
LOWER COURT JUDICIAL OFFICER :	Ashford J

CA 40123/04
CC 1812/99

GILES JA
IPP JA
TOBIAS JA

Monday 8 November 2004

JOHN DAVID MURRAY v COMMISSIONER OF POLICE

Judgment

1 GILES JA: I agree with Tobias JA.

2 IPP JA: I agree with Tobias JA.

3 TOBIAS JA: This is an appeal from orders made on 19 September 2003 by Judge Ashford of the Compensation Court of New South Wales dismissing an appeal by the appellant from, and thereby confirming, a decision of the respondent's delegate of 20 February 2002. The decision in question was that the specified infirmities of post traumatic stress disorder, adjustments disorder, depression and alcohol abuse, which had been certified by the Police Superannuation Advisory Committee (the PSAC) as delegate of the SAS Trustee Corporation (STC) as incapacitating the appellant from discharging his duties as a police officer, were not in fact duty-related. By s 32(1) of the Compensation Court Act 1984 (now repealed), the appeal to this Court is confined to points of law.

The background facts

4 The appellant commenced his police service with the respondent on 20 July 1981. He became a probationary constable in September 1981 and worked on general duties for a period, later moving to vehicle maintenance. In 1985 he was transferred to the Highway Patrol at North Sydney and in 1988 was transferred to the Bass Hill Patrol. In November 1989 he undertook a course in dog training and commencing work with the Dog Squad at Bass Hill. In October 1990 he was promoted to Senior Constable, and in September 1992 to Senior Sergeant. In July 1994 he underwent a Senior Investigator's course having previously undertaken a management course for supervisors. He became Sergeant in Charge of the Dog Squad stationed at Bass Hill, being responsible for 14 officers and 14 dogs.

5 On 8 October 1997, the appellant was called to the respondent's Georges River Regional Office where four senior officers interviewed him with respect to his management skills. He was informed that an investigation had been undertaken which demonstrated that there was no confidence in his management ability. The meeting lasted for approximately half an hour, at the end of which he was asked to leave while his fate was discussed. He was called back and advised by Assistant Commissioner Ellis, who apparently chaired the meeting, that it had been decided to transfer him from the Dog Squad to general duties at Bankstown Police Station for a period of 12 months with no loss of rank or salary.

6 The appellant felt betrayed and upset by this action and commenced drinking heavily. On 10 October 1997 he went on sick leave. He was admitted to the St John of God Hospital, Burwood on 7 February 1998 and was discharged on 23 February 1998. At that time he was under the care of Dr Selwyn Smith, Consultant Psychiatrist. The appellant thereafter attended the hospital on a weekly basis as an outpatient. He never returned to operational duties.

The appellant's claims for discharge and "hurt on duty" benefits

7 On 23 April 1998, the appellant lodged an Application for Medical Discharge claiming that he had become incapable of discharging the duties of his office. He nominated his medical condition as post-traumatic stress disorder (PTSD). For such an application to be successful, it required the STC to certify that the appellant was incapable of discharging the duties of his office. Certification and consequent discharge from the police force entitled the applicant to an annual superannuation allowance pursuant to s 7(1) of the Police Regulation (Superannuation) Act 1906 (the PRS Act).

8 Section 10(1A) of the PRS Act provides, inter alia, that the annual superannuation allowance for a "disabled member" of the police force is an amount equal to 72.75% of the member's attributed salary of office. This results in a greater allowance than that referred to in s 7(1). However, to qualify for such an allowance, the appellant must be a "disabled member of the police force" which is defined by s 10(1) to mean, inter alia,

"a member of the police force who is discharged after being certified, pursuant to s 10B(1), to be incapable, from a specified infirmity of body or mind, of discharging the duties of the member's office,
…,
that infirmity being determined pursuant to s 10B(3) or on appeal, to have been caused by the member being hurt on duty …"

9 Section 10B(1) provides that an annual superannuation allowance will not be granted under s 10 to a member of the police force who is discharged unless the STC has certified the member to be incapable, from a specified infirmity of body or mind, of discharging the duties of his office.

10 On 5 October 1998, the appellant lodged a Claim for Hurt on Duty Benefits. Again, he claimed that he was suffering from PTSD. In a document prepared by him on 17 December 1998 (Exhibit L), the appellant listed approximately 38 traumatic events where he either experienced serious injury to himself or witnessed the death of, or serious injury to, others.

11 Pursuant to s 10B(1) of the PRS Act, the STC by its delegate, the PSAC, certified on 24 February 1999 that the appellant was incapable of discharging the duties of his office by reason of the specified infirmities of "Adjustment Disorder, Depression and Alcohol Abuse". However it did not accept that he was incapacitated by reason of PTSD.

12 The appellant having been duly certified pursuant to s 10B(1) of the PRS Act, the respondent (or his delegate) was, pursuant to s 10B(3), required to decide whether or not the infirmity to which the STC's certificate related was caused by the member being "hurt on duty", an expression defined in s 1(1) to mean, in relation to a member of the police force, that that member had been injured

"in such circumstances as would, if the member were a worker within the meaning of the Workers Compensation Act 1987, entitle the member to compensation under that Act."

Those circumstances were that the injury arose out of or in the course of the appellant's employment as a police officer: Workers Compensation Act, 1987, s 4 .

13 On 3 March 1999, the respondent's delegate decided that even though the appellant was certified as suffering from "Adjustment Disorder, Depression and Alcohol Abuse" as specified in the certificate of the PSAC of 24 February 1999, these infirmities were not caused by the appellant being "hurt on duty".

14 The appellant disputed the STC's certificate issued pursuant to s 10B(1) upon the basis that it had wrongly failed to include PTSD as a relevant infirmity rendering him incapable of discharging the duties of his office. That dispute was required to be determined by the STC pursuant to s 67(1) of the Superannuation Administration Act, 1996 (the 1996 Act). On 17 November 2000, the STC Disputes Committee confirmed the decision of the PSAC that the appellant only suffered from the three original infirmities as certified and not from PTSD.

15 The appellant, pursuant to s 88 of the 1996 Act, appealed that determination to the Industrial Relations Commission (the Commission). Glynn J heard the appeal in May 2001. On 12 December 2001, her Honour upheld the appeal: [2001] NSWIRcomm 307. She found (at [176]) that as at 4 March 1999 (being the date of the appellant's discharge from the police force and being the day after the respondent's delegate decided pursuant to s 10B(3)(a) of the PRS Act that the appellant's infirmities as determined by the PSAC on 24 February 1999 were not duty-related), that that the appellant was suffering from PTSD and consequently was incapable, within the meaning of s 8(1) and s 10B(1) of the PRS Act, of discharging the duties of his office. Accordingly, her Honour ordered that the Certificate of Incapacity issued on 24 February 1999 by the STC in respect of the appellant be amended from that date by adding the specified infirmity of PTSD.

16 Glynn J considered and accepted (at [80]) the evidence of the appellant with respect to the traumatic events described by him and his reactions to them. She noted that the occurrence of those events was not contested. Her Honour then considered the expert medical evidence in some detail and concluded (at [121]) that the condition of the appellant as at 8 October 1997 and 3 March 1999 warranted a diagnosis of PTSD. It is readily apparent that her Honour, using the discussion of PTSD in the Diagnostic and Statistical Manual of Mental Disorders, 4th ed 1994 (DSM-IV) published by the American Psychiatric Association, came to the conclusion that the condition of PTSD from which the appellant was suffering as at 8 October 1997 was the result of the appellant being exposed to a number of traumatic events, any one of which would have been sufficient to trigger that condition. Her Honour thus identified through the medical evidence those events as the stressors which gave rise to the condition.

17 Glynn J also considered the effect of the meeting on 8 October 1997, which precipitated the appellant's departure from the police force, and concluded that that event was a stressor that led to the worsening of the PTSD from which he was then suffering. I mention these matters because the appellant submitted that her Honour's finding that the traumatic events detailed by him in his evidence both before the Commission and the primary judge were stressors which gave rise to the condition of PTSD sustained prior to the events of October 1997. This created an issue estoppel, so it was asserted, which the primary judge should have accepted as determining that the appellant's PTSD was caused by those events as stressors. Of course that still left the primary judge with the question of whether those stressors arose out of or in the course of the appellant's employment as a police officer. However, it does not seem to have been suggested that they did not. I shall return to the estoppel issue later in these reasons.

18 Having obtained an order that PTSD was to be added to the STC's 24 February 1999 Certificate of Incapacity, by which that condition also rendered the appellant incapable, within the meaning of s 10B(1) of the PRS Act, of discharging the duties of his office, the respondent was required pursuant to s 10B(3) to decide whether or not the additional infirmity was caused by the appellant being "hurt on duty" (as defined).

19 On 20 February 2002, the respondent's delegate determined that question in the negative. The appellant appealed to the Compensation Court from that decision pursuant to s 21(1)(b) of the PRS Act.

The primary judge's decision

20 The primary judge set out in general terms the appellant's evidence with respect to his involvement in the traumatic events to which Glynn J had referred in [68] of her judgment in the Commission. Senior counsel for the appellant informed us that all but one of the 38 events so detailed in the evidence before Glynn J was the subject of identical evidence before the primary judge.

21 The primary judge recorded the appellant's evidence that he began to experience nightmares commencing several years prior to his discharge from the police force whereby he relived traumatic events which he had experienced, and that these dreams occurred well prior to his transfer from the Dog Squad in October 1997. She referred to his evidence of vulnerability at work and sleeping difficulties and to the fact that his family relationships had deteriorated. Reference was made to the appellant's evidence, supported by other witnesses, that he had become agitated and short-tempered.

22 It was common ground that the appellant had not sought any medical treatment or assistance in relation to any of the events which he said troubled him prior to 8 October 1997, notwithstanding that he had suffered nightmares and flashbacks in relation to those events commencing well prior to that date.

23 After detailing the appellant's evidence as well as that of the lay witnesses called on his behalf, together with the evidence of Superintendent Ellis with respect to the events of 8 October 1997, her Honour then turned to the medical evidence. At [36] of her judgment she recorded the evidence of Dr Selwyn Smith, who had treated the appellant since his admission to the St John of God Hospital in early February 1998. The appellant had been admitted, she said,

"… with a diagnostic criteria for chronic alcoholism, major depressive disorder and post-traumatic stress disorder. In respect of that latter diagnosis, Dr Smith noted he had recorded the appellant to have experienced 'flashback' episodes of work-related incidents and in his view these episodes were in keeping with a diagnosis of PTSD."

24 After referring to Dr Smith's report of 28 June 1999, the primary judge recorded the following:

"38. Following further treatment and consultation with the appellant Dr Smith was of the view the diagnostic criteria for PTSD had been satisfied, and the appellant did not have an adjustment disorder. He recorded he had obtained a history from the appellant of exposure to a multiplicity of traumatic events from 1981 up to a discharge from the service and that he had witnessed and associated with many fatal accidents, was confronted with frequent suicides, and witnessed individuals being murdered, and burnt in their motor vehicles. He recorded that whilst on highway patrol duties the appellant had experienced a number of accidents as a result of confrontations with offenders and in particular the death of a young woman pedestrian had been particularly traumatic. He also recorded the appellant to have been knocked from his police motorcycle on several occasions and to have been threatened with a rifle. In his view the appellant satisfied the diagnostic criteria for PTSD.
39. In lengthy and repetitive cross examination Dr Smith did not resile from his opinion."

25 Her Honour then referred to the evidence of Dr J A Roberts who saw the appellant on 14 October 1997 on referral from his GP, Dr Michael. At that first consultation her Honour recorded that Dr Roberts was of the opinion that the appellant suffered an adjustment disorder as a result of his problems at work. Upon review on 16 March 2000, Dr Roberts noted that the adjustment disorder had not resolved and that the appellant was now being treated for PTSD based upon a belief by his treating psychiatrist (Dr Smith), that his condition arose as a result of exposure to multiple traumas during the course of his work. It would appear that Dr Roberts did not necessarily agree with this diagnosis.

26 The primary judge then referred to the evidence of Dr Canaris, a consultant psychiatrist called on behalf of the appellant. Her Honour recorded that Dr Canaris thought there was a very high incidence of alcohol abuse amongst PTSD sufferers, and continued (at [47]):

"He [Dr Canaris] thought several factors contributed to the appellant's decompensation, including the history of severe exposure to trauma but the immediate trigger was his perception of unfair and nepotistic displacement from his job. However he thought it important to note that symptoms of PTSD were present for many years before that incident and thus whilst his transfer from the Dog Squad was also a substantial cause of his illness it was by no means the only substantial cause."

27 Her Honour then made reference to a medico-legal report of Dr Lewin, a consultant psychiatrist called on behalf of the respondent, relating to his assessment of the appellant on 18 January 2000. Objection was taken to the tender of this report upon the basis that it was apparently prepared for the purpose of determining whether the appellant was suffering from PTSD at the time he was discharged from the police force. In other words, it was prepared for the purpose of defending the accuracy of the STC's certificate that excluded PTSD as an infirmity. As her Honour recorded (at [52]), Dr Lewin's view was that the appellant's essential problem was his emotional reaction to the events of October 1997 magnified by his alcohol abuse over a period of time and by aspects of his hospital treatment. Dr Lewin had concluded in these terms:

"Prior to 1997 Mr Murray experienced stress in the context of a range of unpleasant experiences in the line of his duty. He had some post-traumatic symptoms. However, diagnosis of Post Traumatic Stress Disorder would not explain his reaction to the problems in October 1997, nor does it explain his period of dysfunction leading to his medical retirement in May 1999. In my opinion the correct diagnosis is Adjustment Disorder, anxiety and depressive symptoms in a vulnerable individual."

28 Although Dr Lewin accepted that it was arguable that the appellant had some clinical features of PTSD, in his opinion the appellant's case did not fulfil the diagnostic criteria for that disorder.

29 I interpolate at this point that Dr Lewin's report was, in my opinion, inadmissible on the ground that it was irrelevant to the issue which the primary judge had to decide. It was common ground and, for that matter, recognised by her Honour initially (at [2]), that the issue of causation was the primary matter for her determination. Furthermore, she was bound by the STC's amended Certificate of Incapacity that the appellant was incapable of discharging the duties of his office as a consequence of PTSD: Saad v Commissioner of Police (1995) 12 NSWCCR 70 at 75F. In these circumstances, Dr Lewin's opinion that the appellant was not suffering from PTSD was irrelevant. It was a given. The only question was whether it was work-related.

30 Finally, the respondent relied upon a report of Dr Lee, also a consulting psychiatrist. He also expressed the view that it was unlikely that "the infirmity was pre-existing". He suggested that he should be provided with further information. However, he consolidated his report in these terms:

"On the other hand, built into the definition of Post Traumatic Stress Disorder is the statement that the condition is caused by life-threatening or dangerous situations. Accordingly, if he genuinely suffered symptoms before the attempt to transfer him, the condition of Post-Traumatic Stress Disorder would be work-related."

31 Having received additional documentation in a subsequent report of 14 August 2002, Dr Lee expressed the opinion that the appellant's then condition "whether PTSD or otherwise", was precipitated by his being overlooked to lead the newly created Dog Squad and his later removal from that squad. He also said this:

"It is difficult to reject the proposition that he did not suffer a condition significantly caused by his duties because of these complaints (provided they are genuine reports) and because there was no indication of post-traumatic stress disorder until some time after the admission to St John of God Hospital."

32 This last statement is difficult to understand but I take it to be an expression of Dr Lee's opinion that the appellant had not suffered any condition significantly caused by his duties as a police officer. Furthermore, it may be that he was opining that the appellant was not in fact suffering from PTSD.

33 At [56] of her judgment, her Honour noted that the appellant had given evidence of a number of stressful events to which he was exposed in the course of his employment. She acknowledged that many of those events were traumatic and involved the appellant in dangerous situations at times. However, she considered that

"such events are part and parcel of the duties of a police officer".

34 That may be true, but what it has to do with the present issue is difficult to fathom. If her Honour was intending to convey that the appellant could not have suffered from PTSD as a consequence of those events because they were part and parcel of his duties as a police officer, then clearly she was in error. However, such an error was probably one of fact rather than of law.

35 The primary judge then noted (at [57]) that in October 1997 the appellant appeared to relate all his problems to his transfer from the Dog Squad. This, she said, gave credence to the respondent's submission that the appellant performed some rationalisation of prior events after his transfer in October 1997 and then sought to attribute his emotional problems to those prior events in the police service. However, it is noteworthy that the respondent has not referred us to any medical evidence to support this submission and, according to senior counsel for the appellant, there was none.

36 In [60] of her judgment, the primary judge said this:

"It is submitted by Counsel for the appellant that he was suffering impaired function in his day to day living consequent to an undiagnosed condition of PTSD both in the eighties and nineties albeit he was coping with that condition, relying upon the appellant's evidence of dreams he had experienced prior to October 1997 and also to the evidence of Mr Jones that the appellant had become increasingly short tempered, was working excessive hours, and there had been changes in the appellant's attitude to his job prior to that time. There was also evidence of Miss Connors relating to changes in the appellant's personae and appearance. Both these witnesses were credible, but I am of the opinion, on the balance of probabilities, that their evidence does no more than establish the appellant worked long hours, was short tempered and did not take care of himself. It does not establish injury."

37 Her Honour's conclusion that the evidence of Mr Jones and Ms Connors did not establish "injury" fails, in my opinion, to take account of the fact that the changes in the appellant's personae and appearance as observed by those witnesses, particularly short-temperedness, fulfilled one or more of the symptoms of increased arousal referred to in criterion D of the diagnostic criteria for PTSD in DSM-IV. However, for present purposes, that is by the by.

38 In [61] her Honour noted the evidence of Dr Roberts that all the problems of which the appellant complained related to his transfer to general duties rather than to past events by way of traumatic matters during the course of his service. She accepted that evidence.

39 At [64] the primary judge noted that for the appellant to succeed he must establish that he was injured in such circumstances as would, if he were a worker within the meaning of the Workers Compensation Act 1987, entitle him to compensation under that Act. She then referred to s 4 of that Act whereby the appellant was required to establish that he sustained injury arising out of or in the course of his employment with the respondent and that his employment was a substantial contributing factor thereto (s 9A). Her Honour then concluded in the following terms:

"65. Leaving aside s 11A for the moment, it seems to me that up to 8 October 1997 the appellant attended to his duties in the Dog Squad and also worked secondary employment with no outward problem. He sought no medical attention, nor any counselling. He told no one of any difficulties he may have experienced and to all intents and purposes was a fully functional police officer. He clearly enjoyed his position in the squad and enjoyed working with the dogs. It was not until the meeting of 8 October 1997 he became dysfunctional. From that time it seems to me his world fell apart as a result of that meeting and his transfer from the dog squad. The effect of the meeting was to cause the appellant to decompensate and to then seek to rationalise to the extent that he became incapacitated and sought to attribute such incapacity to prior events in the service rather than the effect of the transfer, per se.
66. I am not satisfied on the balance of probabilities the appellant has established that he suffered injury within the meaning of s 4 before 8 October 1997, nor that any incapacity resulted from employment before that date."

40 Her Honour then went on to consider s 11A of the Workers Compensation Act, 1987 which, relevantly, provides as follows:

"(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to works."

41 After considering that the appellant's transfer was reasonable action by his employer within the meaning of s 11A(1), the primary judge held that she was satisfied that the respondent had discharged the onus in respect of that provision. In my opinion that conclusion inevitably carried with it a finding that the PTSD from which the appellant was suffering was wholly or predominantly caused by his transfer from the Dog Squad on 8 October 1997. This is a critical finding as will appear.

42 Accordingly, her Honour determined that she was not satisfied on the balance of probabilities that the infirmity of, inter alia, PTSD arose out of the appellant's employment with the police force nor resulted from injury in the course of that employment. She accordingly dismissed his appeal and confirmed the decision of the respondent that his being "hurt on duty" did not cause his certified infirmities.

The issues on the appeal

43 Notwithstanding a number of grounds of appeal, essentially the appellant identified what he submitted were two errors of law made by the primary judge. The first was her Honour's failure to accept the submission that, as a consequence of the findings of Glynn J in the Commission, the respondent was estopped from asserting that the PTSD from which the appellant was suffering was not caused by the stressors constituted by the traumatic events found by Glynn J to have occurred during the years preceding the events of 8 October 1997. The second issue concerned the submission that were was no evidence to support the finding of the primary judge that the PTSD from which the appellant suffered was solely caused by the events of 8 October 1997 being his transfer out of the Dog Squad. It was common ground that both these issues raised questions of law.

The first issue

44 The appellant submitted that the decision of Glynn J in the Commission raised an issue estoppel founded on her Honour's finding that the infirmity of PTSD from which he was suffering as at 24 February 1999 was caused by the 38 traumatic events of which the appellant gave evidence and which (as required by diagnostic criterion A in DSM-IV) resulted in him experiencing serious injury and/or a threat to his own physical integrity and witnessing or being confronted with events that involved actual or threatened death or serious injury or threat to the physical integrity of others. It was submitted that the finding of Glynn J that those events or stressors caused the appellant's PTSD was an essential one without which she could not have found that the appellant suffered from PTSD at any relevant time. In other words, her Honour had to identify the stressors which were capable of causing the appellant's PTSD and to then find that those stressors in fact caused that condition. This she did.

45 Issue estoppel was described by Dixon J in Blair v Curran (1939) 62 CLR 464 at 531 in these terms:

"A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies."

46 There is no doubt that the decision of Glynn J was a "judicial determination". The Commission in Court Session is a superior court of record (Industrial Relations Act 1997, s 152(1)) and, as such, it has a higher status than the Government and Related Employees Appeal Tribunal whose decisions were considered, in all probability, as giving rise to issue estoppel: Lambidis v Commissioner of Police (1995) 37 NSWLR 320. Furthermore, the High Court in Kuligowski v Metrobus [2004] 78 ALJR 1031, in a judgment of the Court, said (at 1035-1036 [22]) that it was common ground that

"The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute or from the submission of parties, and it only has temporary authority to decide a matter ad hoc."

This quotation is from the judgment of Gibbs J in Administration of the Territory of Papua and New Guinea v Darea Guba (1973) 130 CLR 535 at 453.

47 The more difficult question is whether the respondent was a privy of STC who was the sole respondent to the proceedings before the Commission. We were referred to a number of provisions of the PRS Act, the Police Service Act 1990 and the 1996 Act to support the proposition that the respondent was, relevantly for present purposes, a privy of STC. We were also referred to the discussion on this subject in Spencer Bower, Turner and Handley – The Doctrine of Res Judicata, 3rd ed (1996) at pp 119-122 [231]-[232]. It was submitted that the respondent had the same kind of interest, legal or beneficial, in the proceedings before the Commission as in those before the Compensation Court. Thus, so it was contended, the respondent had "a common interest" with the STC in the determination by the Commission of the cause of the appellant's incapacity due to his PTSD.

48 Notwithstanding the arguments for the appellant, I am unable to accept that the respondent was relevantly a privy of STC. Each had their separate statutory functions. In particular, the STC had the statutory task of certifying pursuant to s 10B(1) of the PRS Act, that the relevant member was incapable of discharging the duties of his office. Once such certification was made the respondent was required to decide pursuant to s 10B(3) whether the infirmity was caused by the member being hurt on duty. The respondent had no interest in the STC's certification pursuant to s 10B(1) unless and until the relevant certificate was issued. If it was not, then the respondent had no task to perform. It was only once a member of the police force was duly certified under s 10B(1) that the respondent was required to perform its statutory task. Until that point of time there was no common interest.

49 It may be that the STC had an interest in the respondent's decision pursuant to s 10B(3), but only if the respondent decided that the relevant infirmity was caused by the member being hurt on duty at which point he became entitled to an annual superannuation allowance pursuant to s 10(1)A and the STC, as trustee of the superannuation fund established under Part 3 of the PRS Act, was required by s 3(3) to pay out of the fund the benefits provided by that Act. However, we are not concerned here with the STC being a privy of the respondent, but the reverse. In my opinion the respective statutory functions of each body is such that it cannot be concluded that the respondent was a privy of the STC in respect of the proceedings before the Commission so as to create an issue estoppel arising out of the findings of Glynn J in those proceedings.

The second issue

50 Although the primary judge (at [66]) held that she was not satisfied on the balance of probabilities that the appellant had established that he had suffered injury within the meaning of s 4 of the Workers Compensation Act, 1987 before 8 October 1997, it is clear, at the very least inferentially, that her Honour held that the PTSD from which the appellant suffered related to the "trauma" of his transfer from the Dog Squad to general duties on 8 October 1997 and not from the "past events by way of traumatic matters during the course of his service". As I have already noted, it was the evidence of Dr Roberts which her Honour expressly accepted it (at [61]) that all the appellant's problems related to his transfer to general duties. As I also noted in [41] above, her Honour found that the respondent had established for the purposes of s 11A(1) of the Workers Compensation Act, that the injury of PTSD was wholly or predominantly caused by reasonable action taken by or on behalf of the respondent with respect to the appellant's transfer out of the Dog Squad. That finding constitutes an error of law if there was no evidence at all to support it.

51 The appellant submitted that there was no such evidence, and the respondent was unable to refer us to any such evidence. Furthermore, in my opinion the evidence as a whole is clearly to the contrary. Thus, Dr Smith (at Black 3/541 G-I) was asked by counsel for the respondent:

"Q. Now, there is no dispute about this, because if you have read the text book, everyone knows that transferring him cannot cause PTSD.
A. Correct."

52 Furthermore, diagnostic criterion A in DSM-IV required the appellant to have been exposed to a traumatic event in that he:

"experienced, witnessed or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others."

53 It is clear that the appellant's transfer out of the Dog Squad on 8 October 1997 was not such an event and, therefore, could not have caused his PTSD. Although it is true that Dr Roberts considered that the appellant's problems related to his transfer to general duties, his opinion was that the appellant was not suffering from PTSD but from Adjustment Disorder and that that was work-related. In his report of 27 April 2000, Dr Roberts acknowledged that the appellant was then being treated for PTSD based on a belief by Drs Smith and Canaris, his current treating psychiatrists, that his condition arose as a result of exposure to multiple traumas during the course of his work. However, in terms of diagnosis, he continued to prefer that of an Adjustment Disorder and, in particular, Chronic Adjustment Disorder.

54 Given that the primary judge was required to proceed on the basis that the appellant was suffering from PTSD at the time he was certified as being incapable of discharging the duties of his office, it follows that Dr Roberts' opinion was irrelevant to the issue of causation which was the primary issue that her Honour was required to determine. As I have already observed, the same comment applies to Dr Lewin and perhaps Dr Lee. On the other hand, the opinions of Drs Smith and Canaris were that the appellant was suffering from PTSD which was caused by the traumatic events to which he had been exposed during the course of his employment.

55 In my opinion, it follows from the foregoing that there was no evidence to support the primary judge's inferential finding that the PTSD from which the appellant was suffering as at 24 February 1999 was caused solely by the events of 8 October 1997 and, in particular, the decision on that day to transfer him from the Dog Squad to general duties. There being no evidence to support such a finding, it follows that her Honour erred in law in making it. It was a critical error which, in my opinion, undermined not only her finding that the appellant had not established that he suffered injury within the meaning of s 4 of the Workers Compensation Act, 1987 before 8 October 1997, but also her finding pursuant to s 11A(1) of that Act that the appellant's psychological injury constituted by his PTSD was wholly or predominantly caused by reasonable action taken by the respondent with respect to his transfer of the appellant from the Dog Squad to general duties.

Should the matter be remitted for further determination?

56 Before the repeal of the Compensation Court Act, 1984 (the repealed Act) by the Compensation Court Repeal Act, 2002 (the 2002 Act), s 32(2) of the repealed Act empowered this Court to remit the proceedings to the Compensation Court for redetermination. Clause 8 of the Compensation Court Repeal (Transitional) Regulation 2003, made pursuant to the 2002 Act, provided that the District Court was to exercise residual jurisdiction in respect of the Compensation Court. In particular, s 32 of the repealed Act was to continue in force subject to the proviso that only reference to the Compensation Court in s 32 was to be read as a reference to the District Court. The 2002 Act ceased to have effect on 6 July 2004, essentially being replaced by the Courts Legislation Amendment Act 2004 (the 2004 Act). Section 142N of the 2004 Act replicates s 32 of the repealed Act with the exception that the words "Compensation Court" are replaced with the words "District Court". Further, s 142G provides that the residual jurisdiction of the District Court is the jurisdiction conferred on the District Court by the 2002 Act. Section 142I invests the District Court with the same powers, authorities, duties and functions as the Compensation Court had under the repealed Act.

57 The appellant submitted that if error of law was established, the matter should not be remitted for rehearing by the District Court but that this Court should make a finding that the appellant's PTSD was caused by his exposure to a number of traumatic events in the course of his employment. With a deal of regret, I do not consider that this Court can take such a course, tempting though it is. I also note that the respondent opposes such a course

58 Notwithstanding that s 142N of the 2004 Act provides that this Court may not only remit the matter to the District Court for determination in accordance with our decision but also

"may make such other order in relation to the appeal as the Court of Appeal sees fit,"

a number of decisions of this Court have made it clear that s 32(2) of the repealed Act does not invest it with jurisdiction to make findings of fact: North Broken Hill Limited v Tumes (1999) NSWCCR 412 at 421 [24], [25]; Maurici v Chief Commission of State Revenue (2001) 51 NSWLR 673 at 686 [54]-[57]; ICM Agriculture Pty Limited v Perry [2002] NSWCA 257 at [19].

59 It is true that upon the basis of the evidence before the primary judge, it would seem that the only traumatic events or stressors which could have caused the appellant's PTSD were those identified by the appellant in his evidence, referred to by the primary judge in [5] of her judgment and accepted by Glynn J in the Commission. If that is so, then given the fact that the events of 8 October 1997 were not traumatic in the sense described in by diagnostic criterion A in DSM-IV, the clear probabilities favour a finding that the respondent has not established that the appellant's transfer from the Dog Squad to general duties was wholly or predominantly the cause of his PTSD for the purpose of s 11A(1). These factors notwithstanding, in my opinion this Court is precluded from making findings which I would otherwise regard as bordering on the inevitable. Accordingly, the matter should be remitted to the District Court for determination in accordance with the reasons of this Court.

60 The appellant alternatively submitted that it would be open to this Court to impose conditions on the remitter, and contended that we should condition it by requiring that the redetermination of the matter by the District Court be upon and confined to the evidence before the primary judge. In the circumstances, I consider that the imposition of such a condition would be appropriate. However, I would temper its effect by providing that further evidence may be adduced before the District Court with the leave of that Court.

A matter of concern

61 Before indicating the orders which I propose, it is regrettably necessary to refer to the respondent's representation in this appeal. The respondent's written submissions were not provided to the Court until 4.00pm on the day prior to the hearing date. This was notwithstanding a direction by the Registrar on 20 May 2004 that those submissions be filed by 30 July 2004.

62 Before this Court the respondent was represented by Mr R S Blume, Senior Solicitor/Manager of the Commercial & Industrial Law Unit of the NSW Police Legal Services. He apologised for the lateness of the respondent's submissions, advising that his unit was under-resourced, understaffed and that counsel could not be briefed without the Minister's express approval. I can only assume that that approval was sought and denied. This would be odd given that before the Compensation Court the respondent was apparently represented by counsel. Mr Blume informed this Court that he only received the appeal books two days prior to the hearing and that it was clear, as he quite properly conceded, that he was unable in the time available to master the significant quantity of material in the appeal papers. Accordingly, this Court should have been, but was not, assisted in its deliberations in a manner which would have helped it to a more informed outcome.

63 I wish to make it clear that as I see it, the inadequacy of the respondent's legal representation before this Court was no fault of Mr Blume's. There is no doubt that he did his best to assist the Court within the constraints under which he was clearly labouring. The point is that this was an important case for the appellant and, I would assume, for the respondent. As a government entity it is inexcusable that the respondent was not properly represented by counsel with both the ability and time to properly prepare his case.

64 A government instrumentality or organisation has, in my opinion, a particular obligation to provide first class assistance to this Court. That did not happen in this case. That is not to suggest for one moment that the result would have been necessarily any different; it would, however, have been better informed. This Court does not appreciate inadequate representation on behalf of a government body appearing before it in the circumstances related to us by Mr Blume. Of course, he is only the messenger and as such, it is entirely inappropriate that he should be "shot" as a consequence of him fulfilling his duty to inform us of the constraints under which he was representing the respondent.

65 These remarks should be conveyed to the respondent and to the responsible Minister so that this situation does not reoccur. I would propose that the Registrar be directed to forward a copy of this judgment to each of them marked for their personal attention.

Conclusion

66 In my opinion, the following orders should be made:

(a) Appeal allowed.

(b) Set aside the orders made by Ashford CCJ on 19 September 2003.

(c) Order that the matter be remitted to the District Court for further determination in accordance with the reasons of this Court on condition that the evidence on that further determination be limited to the evidence before the primary judge and that no further evidence shall be adduced except by leave of a judge of the District Court.

(d) Order that the costs of the proceedings before the primary judge abide the further determination of the matter by the District Court.

(e) Order that the respondent pay the appellant's costs of the appeal.

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Last Modified: 11/18/2004