Civil Trials Bench Book — Particular proceedings

The List is kept by the Registrar for Sydney: UCPR, Sch 11 cl 41(1). If any proceedings are commenced at a place other than Sydney they are to be sent by the Registrar at that place to Sydney for entry into the List: cl 41(3).

Proceedings are commenced by statement of claim and should be pleaded in the normal way: cl 40. Proceedings are listed for call over before a judge appointed by the Chief Judge to control proceedings in the List, within 3 months of the filing of the statement of claim: cl 42.

Some matters are ready to have a hearing date set when first called over. Many are not. The managing judge will adjourn any matters that are not ready for hearing to another call over when it is anticipated that the matter might be ready to have a hearing date allocated. When a matter is ready for hearing, the managing judge will fix a hearing date and seek to make an accurate assessment of the length of the hearing, allowing time for addresses and an ex tempore judgment. There are no reserve matters for this List.

This Act applies to all members of the Police Force who joined prior to 1 April 1988. The District Court does not have jurisdiction for injuries occurring prior to 21 November 1979: Staples v COP (1990) 6 NSWCCR 33; Dive v COP (1997) 15 NSWCCR 366.

A member who has 20 years service and who is medically discharged, or aged 60 years or more who retires, is entitled to a pension, based upon their years of service: ss 7(1), 8. A gratuity is payable for a member who is medically discharged with less than 20 years service: s 14.

The decision as to whether a member is medically discharged is made by the Police Superannuation Advisory Committee (PSAC) by delegation from the SAS Trustee Corporation (STC), who must certify the member “to be incapable, from a specified infirmity of body or mind, of personally exercising the functions of a police officer referred to in s 14(1) of the Police Act 1990”: s 10B(1).

A former member who has resigned or retired can ask after his or her resignation or retirement for PSAC to certify that the member “was incapable, from an infirmity of body or mind, of personally exercising the functions of a police officer referred to in s 14(1) of the Police Act 1990 at the time of the member’s resignation or retirement”: s 10(1)(b), definition of “disabled member of police force”.

The concepts “infirmity of body or mind” and “time of the member’s resignation or retirement” were considered in Day v SAS Trustee Corp [2021] NSWCA 71.

If the certified infirmity is found to be caused by the member’s being hurt on duty (HOD) a higher rate of pension is payable pursuant to s 10(1A). That finding is made by the Commissioner of Police (COP) through a delegate pursuant to s 31 of the Police Act 1990.

The basic HOD superannuation allowance is 72.75% of the member’s, or former member’s, attributed salary of office. If the member is totally incapacitated for work outside the police force, the member is entitled to an allowance of 85% of the attributed salary of office. There are further allowances. If the member is not totally incapacitated, the member may be entitled to an additional amount of not more than 12.25% commensurate with the member’s incapacity for work outside the police force: s 10(1A)(b). If the member is totally incapacitated for work outside the police force, the member may be entitled to a further amount of pension, not less than 12.25% and not greater than 27.25% (i.e. between 85% and 100%) “commensurate, in the opinion of STC, with the risks to which the member was … required to be exposed”: s 10(1A)(c). This is known as the “special risk benefit” where “the member was hurt on duty because the member was required to be exposed to risks to which members of the general workforce would normally not be required to be exposed in the course of their employment”: s 10(1A)(c) chapeau.

Where a member is medically discharged with a finding of HOD, the superannuation allowance commences on the day after medical discharge. Section 9A governs the date of commencement of other HOD pensions. The construction of the section was discussed in SAS Trustee Corp v Colquhoun [2022] NSWCA 184. The date of the commencement of additional amounts of a superannuation allowance is governed by s 10(1D). These two provisions raise questions about “backdating”, the subject of many applications to the court.

The Act also provides death benefits where the COP finds death has been caused by having been HOD: s 12C.

The Act also provides “gratuities” to be paid to members and former members who the COP finds are HOD, equivalent to compensation payable to workers under ss 60, 66, 67, 74 and 75 of the Worker’s Compensation Act 1987 (WCA): s 12D.

Once the COP decides whether the member’s condition was HOD or not, the STC decides all questions relating to quantum.

Often members obtain certificates of PSAC specifying multiple infirmities. If any infirmity is accepted as being HOD, the HOD pension is payable. Nevertheless, members will seek to establish that the other infirmities be classified as HOD, as the greater the number of infirmities that are HOD, the greater will be the “top up” payable under s 10(1A)(b) and the greater the chance of being found totally incapacitated for work outside the Police Force.

An application (which is really a hearing de novo) lies to the District Court from any decision of the STC (including a delegated decision by PSAC) arising under the Act or from any decision of the COP on a question of HOD. The right to make an application about a decision of PSAC was confirmed by SAS Trustee Corp v Rossetti [2018] NSWCA 68 which overruled what was thought to be the way of challenging PSAC’s determinations or failure to determine prior to that time. Since the decision in Rossetti, there have been a number of applications to the court concerning old decisions of PSAC, for example Day v SAS Trustee Corp [2020] NSWDC 381 and on appeal [2021] NSWCA 71. The most recent curial decision concerning old decisions of PSAC is Pascoe v SAS Trustee Corp [2022] NSWCA 244.

There is no power to extend the 6 month period fixed by s 21(1): Jennings v COP (1996) 13 NSWCCR 640. To avoid this, members sometimes ask that an earlier decision be “reviewed” and then appeal against the refusal to review — such an application is incompetent: Richardson v SASTC (1999) 18 NSWCCR 423.

Costs are considered above at [5-1020].

The term is defined in s 1(2) of the Act to mean “in relation to a member of the police force, means 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.”

This provision imports all the entitling and disentitling provisions of the Workers Compensation Act 1987 (WCA): Adams v COP (1995) 11 NSWCCR 715; Innes v COP (1995) 13 NSWCCR 27 at 29F; Smith v COP (No. 2) (2000) 20 NSWCCR 27 at [18].

This is not an appropriate place for a disquisition on workers compensation law but it is important to bear in mind the date of injury. The basic scheme of the WCA is that there must be a personal injury (which is defined in s 4 to include a disease contracted in the course of the employment and to which the employment was a contributing factor and also the aggravation, acceleration, exacerbation or deterioration of a disease where the employment was a contributing factor to the same):

For injuries after 12 January 1997, the employment must be “a substantial contributing factor”: s 9A WCA. Consideration is also required of the decision in Badawi v Nexon Asia Pacific Pty Ltd trading as Commander Australia Pty Ltd (2009) 75 NSWLR 503.

For psychological injuries (to which many police succumb) occurring after 1 January 1996, consideration must be given to s 11A. This section was amended at the time s 9A was enacted. For the period 1 January 1996 to 11 January 1997, s 11A required that the employment be a substantial contributing factor to a psychological injury.

The following authorities need to be considered:

This court is bound to accept that the member has the infirmities certified by PSAC and that the member is incapable of discharging the duties of his office: Saad v COP (1995) 12 NSWCCR 70 at 75F; Innes v COP (1995) 13 NSWCCR 27; Dive v COP (1997) 15 NSWCCR 366.

Implications as to causation often arise from the nature of the certified infirmity:

The methodology to be adopted here is authoritatively determined in Lembcke v SASTC (2003) 56 NSWLR 736 per Santow JA, Meagher and Ipp JJA concurring. The easiest way to approach the issue is this to:

In determining the quantum of the “top up”, any condition which is contributing to the disablement which has not been certified either by the COP or the court as being HOD is not to be taken into account, Miles v SAS Trustee Corp [2016] NSWDC 56, SAS Trustee Corp v Miles (2018) 265 CLR 137 overruling [2018] NSWCA 86.

The following authorities need to be considered:

Section 10(1BA) commenced on 30 June 2006. In SAS Trustee Corp v Patterson [2010] NSWCA 167, in construing “an application for payment of the allowance or additional amount” the Court of Appeal held the use of the word “or” was not conclusive. It could be taken as providing for the future and for persons who thereafter become otherwise entitled to apply for an allowance. Nothing in the terms of the Amending Act nor s 10(1BA) revealed an intention to affect accrued rights. Further, nothing in the Interpretation Act, s 30(1)(c), called for a contrary position: at [25].

A related issue arises under s 10B(2). The question in s 10B(2)(a) will be whether the member notified the COP that he or she was HOD before his or her resignation. Section 10B(2)(c) requires that the STC (having regard to medical advice on the condition and fitness for employment of the member) has certified that the former member was incapable, from that infirmity of body or mind, of personally exercising the functions of a police officer at the time of the member’s resignation or retirement. An unjust dismissal does not fall within these terms: Bigg v SAS Trustee Corp [2016] NSWCA 236 at [35].

These usually concern claims for lump sum compensation that would have been payable under WCA ss 66–67 if the member were a “worker”. It is important to bear in mind the date or dates of the relevant injuries.

Sections 216 and 216A, which were repealed on 30 January 2006, still apply for injuries which occurred before 30 January 2006: Sch 4, Pt 22, cl 68–69. The correct version of the legislation to access is 1 December 2005.

As to s 216(3) see the case law cited above at [5-1030] (f) relating to the “special risk benefit” under s 10(1A)(c) of the Police Regulation (Superannuation) Act 1906.

As to section 216(6), see the commentary regarding [5-1030] (c) HOD under the Police Regulation (Superannuation) Act 1906.

From 30 January 2006, death and disability cover for police officers (additional to workers compensation benefits) is provided by industrial awards: Sch 4, Pt 22 of the Police Act 1990. Presumably any litigation arising from such claims goes to the IRC.

The District Court retains jurisdiction over appeals from decisions made pursuant to s 216A for students of policing: s 216AA.

The writer is unaware of any applications under this provision. The similarity of the test in s 216AA(4) to the test under the repealed s 216 and under s 10(1A)(c) of the Police Regulation (Superannuation) Act 1906 should be noted.