Scott v Commissioner of Police

[2005] NSWCA 283

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…