Industrial Court
New South Wales
Medium Neutral Citation: Stephen Bell v Commissioner of Police [2015] NSWIC 11 Hearing dates: 31 October 2014; 14 November 2014 (further written submissions); 16 March 2015; 17 April 2015 (conciliation) and 1 May 2015 Date of orders: 20 August 2015 Decision date: 20 August 2015 Before: Walton J, President Decision: I shall grant the applicant’s claim for interest on the difference between the off duty payment and on duty payment for the periods between 16 August and 18 November 2012 and 7 March to 21 July 2014. I refuse the application for interest for the period of 19 November 2012 to 6 March 2014.
I will make no order as to costs.
The applicant shall file and serve draft orders reflecting the terms of this judgment within 7 days of the publication of this judgment. That approach is taken upon the premise that there is no issue between the parties as to calculation of interest which hitherto has not been the subject of dispute in the present proceedings. In the event that there is an issue as to the draft orders filed by the applicant in that respect, the applicant shall file and serve submissions with respect to the same at the time of the filing of draft orders and the respondent will have a further 7 days in which to respond. In the absence of the receipt of any submission by the respondent within that period, the Court will make the orders proposed by the applicant, provided that they are in the appropriate form, either administratively in Chambers or by formally making the orders. Alternatively, if a submission is received from the respondent within the nominated period, the matter will be listed for a short hearing thereafter.Catchwords: RECOVERY OF MONEY – medically discharged from NSW Police Force – application claiming on duty partial and permanent disability benefit under the Award –contemporaneous proceedings in the Workers Compensation Commission seeking weekly benefits compensation - parties held over proceedings awaiting the outcome of the WCC proceedings – substantive claim for entitlement settled – residual issues as to interest and costs – Court possessed of power and discretion to award interest – principles for exercising discretion – compensatory purpose would ordinarily warrant interest - mitigating factors warrant reduction of interest – delay caused by holding over arrangement – no interest awarded while that arrangement operated – Court possessed of power and discretion to make an order for costs – statutory regimes in industrial and civil procedure legislation - unnecessary to resolve which statutory regime applies – no adjudication on merits of substantive claim– both parties acted reasonably in commencing and defending proceedings – normally each party pay own costs - resolution as to interest evenly balanced - order for costs in favour of the applicant would also undermine dispute procedure in the Award – no order as to costs.
AWARD INTERPRETATION - Are the provisions of cl 10.7 of the Award complied with by the bringing of…
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- AGLC
- Stephen Bell v Commissioner of Police [2015] NSWIC 11
- Case
- [2015] NSWIC 11
- Decision Date
CaseChat Overview and Summary
The court first examined whether the provisions of clause 10.7 of the Award were complied with by the proceedings for the recovery of monies under Part 2 of Chapter 7 of the Act. It found that the application for recovery of monies did not constitute a reference of a dispute under clause 10.7. The court also considered whether an action under Part 2 of Chapter 7 was available to the applicant with respect to on-duty benefits, and whether such orders were dependent upon an assessment by the respondent as to eligibility for an on-duty payment or a determination made pursuant to clause 10.7. The court held that the applicant was entitled to bring proceedings as the obligation for payment existed at the time of the medical discharge, and the question of estoppel was not necessary to resolve. Additionally, the court considered whether conciliation efforts were required under section 371 of the Act, even though the substantive claim had already been settled.
In its reasoning, the court found that it possessed the power and discretion to award interest on the difference between the off-duty payment and the on-duty payment for certain periods. The compensatory purpose of interest awards generally warranted its imposition, but mitigating factors such as the delay caused by the holding over arrangement warranted a reduction. The court determined that no interest should be awarded for the period during which the holding over arrangement was in effect. Regarding costs, the court found that both parties acted reasonably in commencing and defending the proceedings. While the resolution as to interest was evenly balanced, an order for costs in favour of the applicant would undermine the dispute procedure in the Award. Therefore, no order as to costs was made.
The final orders granted the applicant's claim for interest on the difference between the off-duty payment and the on-duty payment for specified periods, and refused the application for interest for the period from 19 November 2012 to 6 March 2014. The court made no order as to costs. The applicant was required to file and serve draft orders reflecting the terms of the judgment within 7 days of its publication. If there were no issues regarding the calculation of interest, the court would make the proposed orders. Otherwise, if the respondent submitted a response within 7 days, the matter would be listed for a short hearing.
Orders
Orders of the court
I shall grant the applicant’s claim for interest on the difference between the off duty payment and on duty payment for the periods between 16 August and 18 November 2012 and 7 March to 21 July 2014. I refuse the application for interest for the period of 19 November 2012 to 6 March 2014.
I will make no order as to costs.
The applicant shall file and serve draft orders reflecting the terms of this judgment within 7 days of the publication of this judgment. That approach is taken upon the premise that there is no issue between the parties as to calculation of interest which hitherto has not been the subject of dispute in the present proceedings. In the event that there is an issue as to the draft orders filed by the applicant in that respect, the applicant shall file and serve submissions with respect to the same at the time of the filing of draft orders and the respondent will have a further 7 days in which to respond. In the absence of the receipt of any submission by the respondent within that period, the Court will make the orders proposed by the applicant, provided that they are in the appropriate form, either administratively in Chambers or by formally making the orders. Alternatively, if a submission is received from the respondent within the nominated period, the matter will be listed for a short hearing thereafter.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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