Scott v Commissioner of Police - [2005] NSWCA 283

No judgment structure available for this case.

CITATION:
Scott v Commissioner of Police [2005] NSWCA 283

HEARING DATE(S):
06/07/05

JUDGMENT DATE:

25 August 2005

JUDGMENT OF:
Handley JA at 1; McColl JA at 2; Brownie AJA at 3

DECISION:
1. Appeal allowed to the extent that the order for costs made in the District Court is set aside. 2. Otherwise appeal dismissed. 3. Order that the respondent pay 25 percent of the appellant's costs of the appeal.

CATCHWORDS:
No question of principle.

LEGISLATION CITED:
Police Regulation (Superannuation) Act 1906 s10
Workers Compensation Act 1987 s4, 9A, 11A

PARTIES:
Danny John Scott (A)
Commissioner of Police (R)

FILE NUMBER(S):
CA 40696/04

COUNSEL:
Ms C Ronalds SC with B Slowgrove - A
Mr C T Barry QC with E Finnane - R

SOLICITORS:
Walter Madden Jenkins - A
NSW Police Legal Services - R

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
RJ09112/02

LOWER COURT JUDICIAL OFFICER:
O'Toole DCJ

40696/04

HANDLEY JA
McCOLL JA
BROWNIE AJA
Thursday 25 August 2005

DANNY JOHN SCOTT v COMMISSIONER OF POLICE

Judgment

1 HANDLEY JA: I agree with Brownie AJA.

2 McCOLL JA: I agree with Brownie AJA.

3 BROWNIE AJA: The appellant was formerly a member of the New South Wales Police Service. Having been discharged from the service on medical grounds, he claimed to be entitled to an annual superannuation allowance, payable by virtue of s 10 of the Police Regulation (Superannuation) Act 1906 (the Act) on the basis that he was a “disabled” former member of the service. Section 10B of the Act had the effect that he was not entitled to that superannuation allowance unless a certain body certified that he was incapable, from some specified infirmity, from discharging the duties of his office. A certificate was issued to that effect. The certificate itself is not in evidence, but it is common ground that the certificate referred to an infirmity described there as “Adjustment Disorder with Major Symptoms of Anxiety”, a recognised psychiatric diagnosis.

4 In these circumstances s 10B(3) required the respondent to decide whether the infirmity to which the certificate related was caused by the appellant having been “hurt on duty”. That expression is defined in s 1(2) of the Act, relevantly, as meaning that the appellant was hurt on duty if 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. A delegate of the respondent decided that the infirmity mentioned had not been caused by the appellant being hurt on duty. The effect of that decision, if not set aside, is that the appellant is not entitled to the superannuation allowance. The appellant brought a proceeding in the Compensation Court, challenging that decision. Whilst the case was awaiting hearing, the Compensation Court was dissolved, and the case was transferred to the District Court, which decided the case adversely to the appellant. He appeals from that decision, and accepts that an appeal only lies in relation to questions of law.

5 The Workers Compensation Act contains these provisions:

Injury -

(a) means personal injury arising out of or in the course of employment;

9A (1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.

11A (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 workers.”

6 The case was fixed for hearing in the District Court, for the period of four days commencing on 22 March 2004, when it came before O’Toole DCJ. The respondent was not then ready to proceed. He had not served any medical or other expert reports, and had failed to make arrangements for the attendance of witnesses. He sought an adjournment, which her Honour refused, and the hearing proceeded.

7 In his application for determination, filed in the Compensation Court, the appellant asserted that his injury was the result of the nature and conditions of the general duties of police work, together with criminal investigation duties concerning drug offences, armed robberies and sexual assaults upon children. The respondent filed an answer, in equally general terms, and then, pursuant to directions given, the appellant gave particulars of a series of incidents (or groups of incidents), said to have resulted in the infirmity mentioned. These particulars ran to more than nine pages of single spaced typing, and identified matters by the letters (a) to (z) and then (aa) to (nn). Broadly speaking, the appellant identified a series of matters which, he said, had caused him distress in the course of his work for the Police Service, including the following matters which are significant for the purposes of the appeal:

“(w) Because of the pressure and stress being suffered by the Applicant, he was drinking to help him relax from the work pressures, which resulted in 1993 him being arrested and charged with the offence of drive with a prescribed concentration of alcohol. He was convicted of this offence by the Court and was also given a $1,000.00 fine by the Police Service, although he was never departmentally charged with any offence.

(x) During this phase of his duty the Applicant suffered a great deal of anxiety and depression and therefore drank heavily to help him relax and forget about his work. He held fears that the persons who he was investigating would identify where he lived and also feared threats being made by these persons, as other members of the unit had received death threats.

(ee) Whilst carrying out these duties, the Applicant was the officer in charge of an investigation involving an offender by the name of Paul Burnes, this person being arrested, charged and convicted of sexual and indecent assault of five children.

Whilst investigating the allegations against Burnes the Applicant sought permission from the crime Manager, Inspector Lowe, to travel to both Brisbane and Temora to enable interviews to be carried out of victims of the alleged assaults committed by Burnes. When those requests were made the Applicant was accused by the Crime Manager of attempting to ‘rort the system’. The Crime Manager further indicated that if the victims were serious about their allegations, they should attend Sydney from Brisbane to be interviewed in Sydney. This eventually occurred.

Subsequent to the initial investigations with the victims and the compilation of brief which was forwarded to the Director of Public Prosecutions, the case officer from the DPP, Ms Phillipa Smith, forwarded a six page requisition document requesting other matters be investigated in relation to the brief against Mr Burnes. Ms Smith requested that the police with intricate knowledge of the brief be involved in the travel and interview of these further persons. The Applicant advised the Crime Manager, Inspector Lowe, of the requisition and he was then accused of being in a conspiracy with the Department of Public Prosecutions to ‘rort’ a trip, and instructed that Inspector Lowe indicated that there would be no way that the request of the DPP would be granted, claiming that they did not tell us what to do.

Subsequent to these conversations, on 26 March 1999, the Applicant whilst in the Hurstville Intelligence Office, which was situated next to the Crime Manager’s Office, was approached by Inspector Lowe who said words to the effect of ‘Get into my office’, the Applicant then entering that office where he was verbally abused in respect to the Burnes investigation and the fact that Ms Phillipa Smith of the Director of Public Prosecutions Office had contacted Superintendent Ryan regarding the investigation. Inspector Lowe accused the Applicant of going over his head. As a result of this abuse and assertions made by Inspector Lowe the Applicant availed himself of approximately two weeks sick leave.

As a result of the treatment received by the Applicant from Inspector Lowe, a complaint was made by him to the New South Wales Ombudsman. That complaint ultimately being investigated by Superintendent Ryan of the Hurstville LAC.

(ff) On Friday 13 August 1999, the Applicant was contacted by telephone by Inspector Lowe, the Crime Manager, and advised that he was required to attend Superintendent Ryan’s office as they had to speak to him about a serious matter. The Applicant subsequently attended Superintendent Ryan’s office where he had served upon him a summons for apprehended violence, which had been issued on the complaint of his former wife Kathryn Scott nee Roach, who alleged that the Applicant had assaulted her on 7 August 1999. The Applicant attempted to explain to Superintendent Ryan that the incident had previously been reported by him and his partner to the Miranda Police Station and that it was contained on the police records and that it was obvious that the claim made by his former wife was false and that investigations should have been carried out by the Police Service prior to accepting her complaint and having the summons issued.

As a result of the summons for apprehended violence being served upon the Applicant, he was then required to surrender his appointments and he was placed on non operational duties until the finalisation of the court matter. The failure of the Police Service to adequately investigate the matter, as well as the subsequent restriction of duty, caused the Applicant a great deal of concern and anxiety. These concerns again formed the basis of a complaint to the New South Wales Ombudsman.

(ll) In August 1999, the Applicant made a number of allegations against senior police concerning the manner in which they had handled the investigation into the allegations against Paul Burnes, as well as the investigation of the allegations made against the Applicant by his former wife. As a result of these complaints, the Applicant was placed under the control of the Internal Witness Protection Unit and this situation caused him a great deal of anxiety and depression.

(mm) In 2000, whilst on sick report, it came to the Applicant’s notice that a solicitor by the name of Ms Daleo of the Director of Public Prosecutions Office, had made a complaint that the Applicant had unlawfully used the police computer system. Ms Daleo was the solicitor who prosecuted the summons alleging apprehended violence against the Applicant and a complaint had been made by the Applicant against the actions of Ms Daleo to the Legal Services Commission as it was believed that she had, during the proceedings against the Applicant, withheld material which she knew to be exculpatory and of assistance to the Applicant in his defence of the allegations raised in the apprehended violence summons.

A Detective Senior Constable David Miller was directed to carry out the investigation of the alleged unlawful access of the computer and that detective had informed the Applicant that he had spoken to Ms Daleo on the telephone following her lodgement of a complaint and she had indicated that she was mistaken as to the allegations she had made and therefore did not require the matter to be further pursued. However, as the complaint was in writing it was incumbent upon Detective Miller to seek reports from the Applicant, as well as subject him to a number of questions and answers relating to his computer access. This further investigation and allegation of unlawful access of the police computer caused the Applicant a great deal of further anxiety and depression.

At the completion of the investigation by Detective Senior Constable Miller, the Applicant was advised that he had established there was no foundation for the allegation and that the Applicant had done nothing wrong. Subsequent to being advised of this, the Applicant believed that the investigation had been completed, however, in 2001 he was contacted by Inspector Messervy who advised the Applicant that he wished to interview him about the same allegations and that it was his intention to caution him.

Inspector Messervy advised the Applicant that Superintendent Lowe had given him the investigation to carry out, this officer being the same officer who the Applicant had previously complained of to the Ombudsman in 1999. At the time that contact was made with the Applicant he was on sick leave. Following the obtaining of legal advice the Applicant did not consent to being interviewed at that time.

Subsequent to this contact by Inspector Messervy, the Applicant heard nothing more of the matter until March 2002 when a Sergeant from Hurstville, advised him that the investigation had been finalised because there was no evidence to substantiate the allegations. The Applicant was further advised that Superintendent Lowe had stated that the Applicant was not to be told of the finalisation of the matter.

8 Later, the respondent filed an Amended Answer in which he identified the following grounds for resisting a claim:

Workers Compensation Act

adjustment disorder with major symptoms of anxiety

3) Further and in the alternative, the said employment was not a substantial contributing factor to the said infirmity.

4) Further and in the alternative, the said employment was not a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration of the said infirmity.

5) Further and in the alternative, the alleged infirmity is due to other cause or causes unrelated to his employment with the New South Wales Police Service.

6) Further and in the alternative, the alleged infirmity was predominantly caused by reasonable actions of the employer with respect to:

a) Discipline or performance appraisal:

Particulars

ii) Criticism by Inspector Lowe of the Applicant’s conduct with respect to contact between the DPP and Superintendent Ryan in respect of the said investigation.

iii) All actions of the Respondent concerning the Apprehended Violence Order sought in respect of Kathryn Scott nee Roach, including but not limited to applying for the order, serving it on the Applicant, standing down the Applicant or transferring him to other duties, and relieving him of his appointments pending the outcome of the application.

iv) Placing of the Applicant in the Internal Witness Protection unit during the investigation of his complaints into the Burnes investigation and the said application in respect of Kathryn Scott.

v) Investigation of complaint by Ms Daleo concerning unlawful computer use by the Applicant, including but not limited to the actions, if any, of Detective Miller, Inspector Lowe and Inspector Messervy.

vi) Investigation and outcome of complaints referred to paragraph (nn) of the Applicant’s Particulars of Claim.

Particulars

7) Further and in the alternative, the Applicant’s infirmity was caused by a misperception on his part that he was dealt with unfairly by his superiors.”

9 When her Honour rejected the respondent’s adjournment application, she inquired of Mr Finnane, who appeared for the respondent, whether he proposed to rely on the Amended Answer. He said (Black 26) that he would need to take instructions, but that it seemed to him “that the real issues are those in paragraph 6. It seems to me that there is not really an issue on the matters prior to that”. Her Honour suggested that the Court and the parties were bound by the specific diagnosis mentioned in the certificate, and Mr Finnane accepted that, adding:

“It’s just that paragraphs 2-5 … I would need to obtain instructions … to confirm this, but it does seem to me that those grounds will not be pressed and I could certainly confirm that to your Honour tomorrow morning.”

10 On the following day, there was this exchange:

“HER HONOUR: Now what did you want to say about your answer before I come to your application if it’s still on foot, Mr Finnane?

FINNANE: Your Honour, paragraphs 2 to 5 of the answer and I’ve obtained instructions to seek to have those – to withdraw those.

HER HONOUR: So course of employment of no longer in issue?

FINNANE: The course of employment, substantial contributing factor, and outside causes are not --

HER HONOUR: So which are the defences you want to abandon, paragraph 2 --

FINNANE: Paragraphs 2, 3, 4 and 5.”

11 Paragraphs 2, 3, 4 and 5 of the Amended Answer were then withdrawn. On the appellant’s case, all that remained in issue were the grounds identified in paragraphs 6 and 7, and the respondent bore the onus of proving these matters. On the respondent’s case, paragraph 1 of the Amended Answer remained on foot, so that the appellant bore the onus of establishing a prima facie case in the usual way, and particularly on the topic of the causation of his infirmity, so that the respondent did not need to prove anything until the appellant had demonstrated his prima facie case.

12 Her Honour found in the end that Mr Lowe had acted unreasonably in refusing the appellant’s travel request (see the matter particularised as (ee), set out at [7] above and that this had caused the appellant to be incapacitated between 25 March 1999 and 12 April 1999, but that the appellant had fully recovered by the latter date. She continued (Red 35):

“50. Mr Ryan’s and Mr Lowe’s activities on 14 August 1999 and their refraining from investigating the basis of the AV order, infuriated the appellant and probably intensified the appellant’s anger with Mrs Scott. Any “loss of memory” or “strangeness and distress” over the months preceding and following the hearing of “the domestic violence summons”, probably resulted from the appellant’s altercation with Mrs Scott, from their acrimonious relationship, from the data he retrieved from COPS, from the AV order and/or from his consuming of a deleterious quantity of [alcohol]. Therefore the appellant does not persuade me that his infirmity was caused by his being hurt on duty.”

13 This is a reference to the matters referred to in paragraph (ff) of the particulars. “COPS” is an acronym for the Police computer system.

14 Her Honour then made a further finding that, in any event, the respondent had made good the case based upon s 11A of the Workers Compensation Act.

15 After the respondent’s unsuccessful adjournment application, Mr Slowgrove, who appeared for the appellant, moved for “summary judgment”. To state matters briefly, he contended that since Mr Finnane had said that, by reason of the respondent not having procured the attendance of any witness, he was (in the professional sense) unable to properly put positive propositions to the appellant in cross-examination, it followed that the respondent would not be able to succeed in relation to the matters raised in paragraphs 6 and 7 of the Amended Answer, and therefore the appellant was entitled to succeed. Her Honour declined to entertain the motion, ruling that the final hearing should proceed; and in the end she did not rule upon the motion.

16 The appellant takes the following grounds of appeal:

“1. Her Honour erred in law by failing to decide the Appellant’s summary judgment application.

2. Her Honour erred in law by denying the Appellant procedural fairness and natural justice in finding that the Appellant’s infirmity was not caused by his being hurt on duty after the Respondent had abandoned as a ground in its pleading that the Appellant’s employment was not a substantial contributing factor to his infirmity.

Workers Compensation Act

5. Her Honour erred in law by using her observations of the Appellant’s demeanour in the witness box not just to evaluate his testimony but to diagnose the cause or causes of the Appellant’s certified psychiatric condition and deny him natural justice.

6. Her Honour erred in law in accepting the evidence [of] non psychiatrists over the evidence of the Appellant’s psychiatrists as to the cause or causes of the Appellant’s certified psychiatric condition.

7. Her Honour erred in law by assuming a finding that the immediate cause of the Appellant ceasing duty with the Respondent was not duty related was the same as finding that the Appellant’s certified psychiatric condition preventing his return to duty with the Respondent was not duty related.

8. Her Honour erred in law in awarding costs against the Appellant and/or not providing reasons for awarding costs against the Appellant.

9. Her Honour erred in law in that on the evidence no Court acting reasonably would have refused to set aside the decision of the Delegate for the Commissioner of Police and/or awarded costs against the Appellant.”

Ground 1

17 The respondent’s failure to prepare the matter properly for hearing left him in a difficult position, and Mr Finnane made it clear that he would be unable to put to the appellant in cross-examination positive propositions such as might lead to the respondent’s success, based upon any of the matters raised in paragraphs 2, 3, 4 and 5 of the Amended Answer, it being obvious that the appellant’s evidence was likely to be inconsistent with Mr Finnane’s instructions; and this led to the withdrawal of those paragraphs of the Amended Answer. Nevertheless, Mr Finnane said that there were things he would like to cross-examine the appellant about (Black 5), and he did not withdraw paragraphs 1, 6 and 7 of the Amended Answer.

18 On the other hand, Mr Slowgrove said (Black 37) that he proposed to object to “any cross-examination” of the appellant, presumably on the basis that he considered that paragraph 1 of the Amended Answer was a formality, and that the withdrawal of paragraphs 2 to 5 meant that the respondent bore the onus of proof on all questions that were still in issue; and he moved orally for “summary judgment” on the basis that the respondent had no evidence available to support those allegations (Black 39). Her Honour directed that the appellant’s application for summary judgment be put in writing, and supported by evidence, in accordance with the rules of court (Black 42).

19 Later on that day, 23 March 2004, the appellant filed in Court a Notice of Motion, paragraphs 1 – 3 of which sought these orders (Red 22):

“1. That the decision of the Delegate of the Defendant in the Certificate of 18 February 2002 be set aside.

2. That the specified infirmity of the Plaintiff of Adjustment Disorder with Major Symptoms of Anxiety specified in the Certificate of the Commissioner’s Delegate dated 8 February 2002 was caused by the Plaintiff being hurt on duty.

3. Further and in the alternative that paragraphs 1, 6 and 7 of the Amended Answer filed by the Defendant dated 18 September 2003 be struck out.”

20 Mr Slowgrove said that he proposed to rely upon two affidavits in support of this motion, one affidavit sworn by the appellant’s solicitor, Mr Jenkins, and the other an affidavit that had been sworn by Mr Blume, a solicitor acting for the respondent, in connection with the respondent’s application for an adjournment. The affidavit of Mr Jenkins had been delivered to Mr Finnane whilst he was at the Bar table, apparently immediately before the filing in Court of the Notice of Motion, and Mr Finnane sought an opportunity to respond to this affidavit, and he also foreshadowed some objections to the contents of the affidavit. Her Honour declined to entertain the motion there and then, saying (as recorded in the transcript) (Red 23):

“SLOWGROVE: Is your Honour dismissing the motion?

HER HONOUR: I’m not dismissing it. I’m declining to decide it because its decision, particularly in view of the fact that your opponent is instructed to object to at least part of the documentary material on which you wish to rely, is to hear the application for determination. The motion’s on foot. In due course Mr Finnane’s client can have an opportunity to deal with it by asking the Court to file pleadings. I refrain from deciding the motion in a summary fashion for reasons including that paragraphs (1) and (2) seek the principal orders in the application for determination.”

21 A little later, her Honour said:

“It seems to me that in order to hear and consider the prayer in the motion for the first two numbered orders, being the principal relief sought in the application for determination, the Court would need to hear and determine the substantive proceedings and I propose to do so.”

22 I see no appealable error in the exercise of her Honour’s discretion.

23 A judge does not have to entertain an application for summary judgment, made during the course of a final hearing, particularly where the applicant seeks to have the motion heard on short notice, in circumstances less advantageous to the respondent to the motion than the rules of court contemplate, and the more so when to entertain the motion would have the practical result that the final hearing of the matter, then in progress, would be delayed.

Grounds 2 and 5

24 After the Judge dismissed the respondent’s application for an adjournment, and had declined to immediately entertain the appellant’s motion for summary judgment, Mr Slowgrove commenced to prove the appellant’s case by tendering a report by Dr Klug. Mr Finnane objected, saying that Dr Klug had assumed certain facts, and that the appellant had to prove those facts if the report was ultimately to be given any weight, meaning that the appellant must at some stage give evidence himself concerning the facts that Dr Klug has assumed (Black 51-52). A similar course was followed in respects of reports of Drs Wilkins and Vickers, tendered by the appellant.

25 Then Mr Slowgrove called the appellant as a witness. Presumably Mr Slowgrove accepted the logic of the stance that had been adopted by the respondent. To summarise some 55 pages of transcript of the appellant’s evidence in chief, he spoke generally of his career in the Police Service. He was asked to verify the particulars, in a global fashion. There was a successful objection taken to this course, and then Mr Slowgrove took the appellant through 36 of the 40 topics that had been particularised, asking the appellant how those various matters had affected him. Whilst Mr Finnane took various formal objections, there were no objections as to the relevance of any of these matters (Black 57-112). There was no evidence concerning the other four topics set out in the particulars, which need not be mentioned again.

26 Shortly after the commencement of the cross-examination of the appellant, Mr Slowgrove objected to a question asked, concerning the appellant’s response to various distressing matters, about which he had given evidence in chief. There was then a debate as to whether the respondent was entitled to an adjournment, to enable Mr Finnane to take instructions from people who were actually available to give him instructions enabling him to put positive propositions to the appellant concerning the defence raised in paragraph 6 of the Amended Answer, and her Honour ruled that the cross-examination should proceed so far as possible. Mr Slowgrove then foreshadowed an objection to “any” further question that Mr Finnane might ask of the appellant, on the ground of relevance (Black 123).

27 When Mr Finnane continued to cross-examine the appellant about his responses to various incidents, Mr Slowgrove objected on the ground of relevance. Her Honour allowed the question, and Mr Slowgrove said (Black 125):

“Could I just put on the record your Honour that why I say that it’s not [relevant] is that it would appear to go to the issue of causation and my friend has told the Court he has no evidence on the question of causation as I understand it.”

28 There were other similar rulings (for example, Black 133, 146, 148-149).

29 According to the appellant he was denied natural justice, in that her Honour found against him on a basis that the respondent had withdrawn, that is, all grounds of resistance to the appellant’s claim except (relevantly) the ground set out paragraph 6 of the Amended Answer; but on the respondent’s case paragraph 1 of the Amended Answer always remained on foot, and the respondent always put the appellant to proof of his case.

30 In my judgment, the submissions of the respondent should be accepted. First, the appellant’s Notice of Motion sought, in its paragraph 3, to strike our paragraph 1 of the Amended Answer, thereby recognising that paragraph 1 remained on foot at that stage, putting the appellant to proof of his case in chief. Secondly, when the respondent took the objections mentioned above concerning the tender of the reports of Drs Klug, Wilkins and Vickers, the respondent effectively said that the appellant had to be called as a witness, and had to give evidence generally supporting the propositions of opinion set forth in the reports of the three doctors, so that the appellant had to give evidence concerning his responses to the various incidents he relied upon, as founding his claim for relief upon a psychiatric or psychological response to the incidents he had encountered in the course of work, and as going to the question of causation between those incidents and his infirmity, as certified. Thirdly, the appellant effectively accepted that proposition: he gave evidence when, if his present case be accepted he need not have done, and he gave extensive evidence in chief concerning his responses to the incidents in question. Since he gave evidence about these matters in chief, it can hardly have been correct to say that the respondent was not entitled to challenge that evidence in cross-examination, on the ground of relevance.

31 The case does involve some overlapping of issues. The appellant had to establish the equivalent of an “injury” for the purposes of the Workers Compensation Act, and therefore that his employment was a substantial contributing factor to the injury. That much was specifically denied in paragraph 3 of the Amended Answer, which was expressly withdrawn. However, paragraph 1, denying that the appellant was hurt on duty, remained on the record, and the attempt to strike it out did not succeed, so that the appellant remained obliged, if he was to succeed, to provide proof that he had been hurt on duty; and as he had to do if the medical reports tendered on his behalf were to prove anything significant, he had to make good, in the eyes of the primary judge, the histories upon which his medical witnesses relied, that is, that he had been adversely affected in the relevant psychiatric sense by the events in question flowing from his work in the Police Service. He set out to discharge this onus, and as a matter of fact, her Honour considered that he had failed in this regard.

32 The hearing proceeded on the basis that the respondent bore the onus of proving the matters mentioned in paragraph 6 of the Amended Answer (the defence based on s 11A of the Workers Compensation Act), but in my view this is a different issue to the issue whether the appellant had discharged the onus of proof which he bore of proving a prima facie case that he had been hurt on duty.

33 The appellant seeks to overcome the hurdle that the finding in question was one of fact rather than of law by asserting the denial of natural justice, or procedural fairness. I do not accept this submission. In my opinion, a fair view of the progress of the events on the hearing shows that the respondent, whilst abandoning paragraphs 2 to 5 of the Amended Answer, persisted with pressing paragraph 1, and that the appellant recognised that this was so. Thus, the respondent points to the following passage in the transcript (Black 348):

“[MR SLOWGROVE]: My friend abandoned those other aspects of his pleading. It’s not part of my friend’s case, as I see it, that the AVO order so upset him and therefore it doesn’t arise out of employment.

HER HONOUR: I certainly get that impression from Mr Scott himself, time and again in his evidence, Mr Slowgrove.

MR SLOWGROVE: Yes, but that’s not the case my friend has run. You see, my friend abandoned those pleadings that had to do with external causes and has run an 11A case. Once you’re in the 11A bracket it’s the appointments that we look to and its --

HER HONOUR: That’s one of the defences raised, Mr Slowgrove.

MR SLOWGROVE: That’s true and I realise I have the onus, your Honour, but I don’t have to show sole causes in my submission, I’ve got to show a substantial contributing factor and the taking away of the appointments, even on that answer, would show a substantial contributing factor. It’s not the sole factor. I don’t cavil with your Honour about single sole causes. We have a multiple cause case that doesn’t isolate down to one matter and at the end of the day all we need is a substantial contributing factor and it’s my friend that’s got to show sole or predominant causes, not the appellant.”

34 In response, the appellant submitted (transcript 54) that Mr Slowgrove had made the concession only in relation to the removal of the appellant’s appointments (that is his firearm and handcuffs and, perhaps, the belt from they hung). It was common ground that the respondent bore the onus of proof in relation to paragraph 6 of the Amended Answer, but I do not see how one can fairly say that paragraph 1 of the Amended Answer did not remain in effect, putting the appellant to proof of his case, at least on a prima facie basis.

35 Ground 5 is founded upon a passage in [12] of her Honour’s reasons for judgment. After commenting in discrepancies between the facts proved and the facts assumed by the appellant’s medical witnesses to have been true, the Judge said:

“A history of the appellant’s “consuming large amounts of alcohol as a means of coping” with mundane irritations (exhibit C) and Dr Klug’s clinical impression that the appellant’s “alcohol consumption increased to the point of probable dependence” are consistent with paragraphs (w) and (x) of the amended Particulars and with the appellant’s appearance and demeanour during his deposition.”

36 The appellant submitted that the expression concerning his appearance and demeanour connoted a finding of fact, and contended that, since her Honour had not mentioned the matter at trial, and since she had concluded that he had been drunk when giving evidence, he had been denied procedural fairness. I do not accept that one can detect in the reasons for judgment the finding contended for, particularly when the passage is read in its context. Further, I do not think one can elevate what her Honour said into her making a diagnosis upon the basis of what she had observed of the appellant in the witness box.

37 Ground 3 was not pressed.

38 Ground 4 only arises if it becomes necessary to consider the position under s11A of the Workers Compensation Act.

39 Grounds 6, 7 and 9 do not raise any question of law. Essentially, the appellant’s complaint is that her Honour preferred the evidence of a psychologist to the psychiatric evidence. At least in a case such as this one, where the two fields of expertise overlap, that is not capable of being categorised as an error of law.

40 The respondent conceded Ground 8. The order for costs made should not have been made. This concession was made in the respondent’s written submissions of 30 May 2005. In the circumstances I consider that the appellant should have only 25 percent of his costs of the appeal. There should be no order as to the costs incurred in the Compensation Court or the District Court.

Orders

41 I propose the following orders:

1. Appeal allowed to the extent that the order for costs made in the District Court is set aside.

2. Otherwise appeal dismissed.

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Citations

Scott v Commissioner of Police [2005] NSWCA 283

Most Recent Citation

Raisner & Kells [2023] FedCFamC2F 265

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CITATION:	Scott v Commissioner of Police [2005] NSWCA 283
HEARING DATE(S):	06/07/05
JUDGMENT DATE:	25 August 2005
JUDGMENT OF:	Handley JA at 1; McColl JA at 2; Brownie AJA at 3
DECISION:	1. Appeal allowed to the extent that the order for costs made in the District Court is set aside. 2. Otherwise appeal dismissed. 3. Order that the respondent pay 25 percent of the appellant's costs of the appeal.

CATCHWORDS:	No question of principle.
LEGISLATION CITED:	Police Regulation (Superannuation) Act 1906 s10 Workers Compensation Act 1987 s4, 9A, 11A
PARTIES:	Danny John Scott (A) Commissioner of Police (R)
FILE NUMBER(S):	CA 40696/04
COUNSEL:	Ms C Ronalds SC with B Slowgrove - A Mr C T Barry QC with E Finnane - R
SOLICITORS:	Walter Madden Jenkins - A NSW Police Legal Services - R

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	RJ09112/02
LOWER COURT JUDICIAL OFFICER:	O'Toole DCJ