Commissioner of Police v Minahan [2003] NSWCA 239 (24 September 2003)

New South Wales Court of Appeal

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Commissioner of Police v Minahan [2003] NSWCA 239 (24 September 2003)

Last Updated: 26 September 2003

NEW SOUTH WALES COURT OF APPEAL

CITATION: Commissioner of Police v Minahan [2003] NSWCA 239

FILE NUMBER(S):

41131/02

HEARING DATE(S): 28/08/2003

JUDGMENT DATE: 24/09/2003

PARTIES:

Commissioner of Police - Applicant

Adrian Minahan - Respondent

JUDGMENT OF: Sheller JA Santow JA Foster AJA

LOWER COURT JURISDICTION: Compensation Court

LOWER COURT FILE NUMBER(S): 77/01

LOWER COURT JUDICIAL OFFICER: Campbell CJ

COUNSEL:

Mr R.J. Perrignon - Appellant

Mr B. Slowgrove - Respondent

SOLICITORS:

NSW Police Service Court & Legal Service - Appellant

Walter Madden Jenkins - Respondent

CATCHWORDS:

Appeal seeking payment of relevant superannuation allowance on discharge from office.

LEGISLATION CITED:

Police Regulation (Superannuation) Act 1906

Workers' Compensation Act 1987

Police Services Act 1990 (NSW)

Compensation Court Act 1984

DECISION:

Appeal be dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 41131/02

CC 77/01

SHELLER JA

SANTOW JA

FOSTER AJA

Wednesday, 24 September, 2003

COMMISSIONER OF POLICE v ADRIAN MINAHAN

Judgment

1 SHELLER JA: I agree with Foster AJA.

2 SANTOW JA: I agree with Foster AJA and wish only to add these brief observations.

3 This was a case where those in the police service in immediate authority over the respondent knew:

(a) that he had a deep and continuing concern and distress at the very serious allegation made against him which allegation his employer accepted was baseless;

(b) that this distress was exacerbated by his knowing that instead of even a preliminary investigation to test its veracity, the allegation was "referred for intelligence purposes" and probably recorded, despite it being known to be baseless.

4 Those in authority failed at the first encountered difficulty to pursue the complainant Kiesel to test the complaint, when the respondent sought that his employer clear his name. That modest preliminary investigative step of interviewing the complainant, or at the least making more effective effort to do so, fell far short of a full investigation (which latter course the employer might reasonably conclude was unwarranted in the circumstances). Despite the argument before this Court to the contrary, there could in reality be no suggestion of any conflict of interest for his employer the Police Commissioner in conducting that more limited investigation as against exercising due concern for efficient use of resources pursuant to Pt 8A of the Police Services Act 1990 (NSW). It was not reasonable for the Police employer to fail to heed the understandable concerns of a valued officer known to be deeply distressed by these allegations, when it knew them to be unfounded, and instead referring them for intelligence purposes. The respondent naturally perceived that step as leaving a blot on his hitherto unblemished record, adding to his distress and continued anxiety. That is not a criticism of the referral per se. It is simply recognition that vis a vis the employee the steps taken were, in the absence of any investigation, clearly unreasonable. Moreover had the preliminary investigation taken place and confirmed the baselessness of the allegations then no such referral would have been necessary or, if necessary, would have included the favourable result of the preliminary investigation as well.

5 This failure of those in authority has, predictably, led to the loss of a valued police officer. That could not be in the interests of a rational employer. There was never any conflict between the employer's interests insofar as at least a preliminary investigation was concerned, and the employee's interest, even accepting that the former interests were paramount. It is absurd to suggest that this result, in these circumstances and in the context of s11A of the Workers Compensation legislation, was in any objective sense "reasonable action" taken by his employer, "with respect to ... discipline ...". It was on the contrary quite unreasonable.

6 It is equally fallacious to draw by analogy upon the established immunity of police against civil action by those investigated on the basis that no duty of care is owed to them. Civil liability is not the issue here. What is at issue is the proper interpretation of a Workers Compensation statute. It is one which allows payment to a police employee who retires "hurt on duty". It is subject to limited exception where the injury is psychological and was predominantly caused by "reasonable action" on the part of the employer with respect (relevantly) to "discipline" of workers. The application of that exception is not to be determined by analogy to the immunity from civil liability of police officers in course of carrying out an investigation. It simply depends upon the intrinsic reasonableness of the employer's action, taking into account relevant matters pertaining to the employee and known to the employer. There is no basis for finding that statutory exception made out here.

7 I would dismiss the appeal.

8 FOSTER AJA: This is an appeal from a decision of Campbell CJCC given in the Compensation Court of New South Wales on 15 November 2002.

9 The present respondent, Adrian P. Minahan ("Mr Minahan"), who was then a Senior Sergeant in the New South Wales Police Force, had been discharged from the force in December 2000, on the basis that he was suffering from an infirmity of mind, being Major Depression, which rendered him incapable of discharging the duties of his office. He had sought the payment to him of a relevant superannuation allowance pursuant to s 10 of the Police Regulation (Superannuation) Act 1906 ("the Superannuation Act"), the payment of which was dependent upon the present appellant, the Commissioner of Police, ("The Commissioner") deciding that the infirmity "was caused by (the applicant's) being hurt on duty", pursuant to the provisions of s 10B(3)(a) of that Act.

10 The words "hurt on duty" are the subject of statutory definition in Part 1 of the Superannuation Act as follows:-

"hurt on duty, 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."

11 The delegate of the Commissioner decided that the appellant's infirmity of Major Depression had not been caused by his being hurt on duty, as so defined.

12 The respondent then applied to the Compensation Court, pursuant to s 21(1)(b) of the Superannuation Act for a determination in relation to that decision. Under s 21(4), the Compensation Court is empowered to make a determination, either that the decision be confirmed or be set aside and replaced by a different decision, made by the Compensation Court. Such different decision, pursuant to s 21(6), is deemed to be made by the Commissioner of Police and, as such, be carried into effect. His Honour, having heard Mr Minahan's application set aside the decision of the delegate and determined that the infirmity of Major Depression was caused by the applicant's being hurt on duty. He ordered that the Commission pay Mr Minahan's costs.

13 The hearing before his Honour was conducted on the agreed basis that the proceedings should be governed by s 9A and s 11A of the Workers' Compensation Act 1987 ("the Act"). Section 9A provides that:-

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

Section 11A provides:-

(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."

His Honour found in favour of Mr Minahan in respect of the issues posed by these sections.

14 This appeal is confined to his Honour's finding against the Commissioner, under s 11A of the Act, that the respondent's psychological injury, being Major Depression, was not wholly or predominantly caused by reasonable action taken by the Commissioner with respect to discipline of the appellant. It is not sought to disturb his Honour's finding, pursuant to s 9A of the Act, that his employment as a police officer was "a substantial contributing factor" to his psychological injury. However, in order to expose the contested issues in this appeal, it is necessary to make brief reference to the facts found by his Honour to have produced the appellant's condition.

15 Mr Minahan had a lengthy period of service in the police force and had risen to the rank of Senior Sergeant in 1996. In that year he was appointed as Station Controller and second-in-charge at the Police Station at St. Marys, Sydney. In that position he supervised 75 police including, as his Honour found, "nine general duty sergeants, two beat sergeants and approximately sixty-five constables." He was generally regarded as an efficient and honourable policeman.

16 On 26 November 1996, a complaint was received to the effect that Mr Minahan was selling drugs at the Penrith Bowling Club and was also a paedophile. The existence of this complaint came as a great shock to him. It led to the institution of a preliminary enquiry under s 165 of the Police Service Act 1990, as the legislation then stood. The institution of that enquiry was the subject of notification, in accordance with that Act, to the Ombudsman. The officer appointed to conduct the preliminary enquiry was Detective Sergeant Harding, who was acting as Local Area Commander at St. Marys. As a matter of convenience, I shall refer to him by his surname.

17 The evidence makes it clear that the accepted purpose of an enquiry pursuant to s 165 was to determine whether a full investigation of the complaint should be undertaken under Division 4 of Pt 8A of the Police Service Act 1990. Notwithstanding that the enquiry was described as "preliminary", it was of a reasonably formal nature, requiring notification to the Ombudsman and liaison with and reporting to the Internal Affairs Unit of the Police Force. It also appears that there existed, at that time, within the Police Force, a unit referred to as the Corruption Prevention Unit. It appears that this was separate from Internal Affairs. Its role is not explained in the evidence although, obviously, certain inferences can be drawn from its name.

18 In January 1997, in the course of his being interviewed by Harding, Mr Minahan was advised that the person making the complaint was relaying information from another person called John Kaisel, whom the respondent was able to identify as being a barman at the Penrith Bowling Club, of which he was a member. The person, Mr Morgan, who had relayed this information from Mr Kaisel was interviewed by Harding, in the course of his enquiry. It is clear that Harding did not form a good opinion of this informant. He referred to him as "a biker on some disability, who has had an accident and he's brain damaged or something." And that he was "only relating the story that John told him." The respondent vehemently denied the allegations and was obviously most upset by them. He asked what was going to happen and was informed that Harding would contact Internal Affairs. Later, Harding told the appellant that he had been speaking to Internal Affairs and that the matter "would be filed as intelligence." This information caused the respondent great concern. He gave the following evidence which was accepted by his Honour:-

"I was devastated. I immediately thought that's the end of my career. I was sick, sick to the stomach. I get very angry and I was frustrated. I rang Internal Affairs to ask them why this would happen and they said they had a legislative requirement to record it...."

19 It is clear that Mr Minahan was satisfied that the reference to this complaint on his police record would, in effect, end his police career. His Honour accepted him, when he said:

"It's the end of it and as an existing person at any station that anyone knows about it, it's the end of you, especially these types of allegations."

20 Harding, who knew the respondent well and thought highly of him, regarded the complaint as ridiculous. After the completion of his preliminary enquiry he recommended to Internal Affairs that no further action be taken in respect of the complaint. This recommendation was accepted. The result was that there was no full investigation of the complaint under Division 4, Pt 8A. I shall make further reference to this aspect of the matter later in these reasons.

21 Although the Ombudsman's office had indicated that no further action would be taken in respect of the notification of the complaint to them, a letter was written from that office to the Region Commander on 9 January 1997, which contained the paragraph:-

"I have carefully perused the documents provided and recommended that the matter be referred to your Service's Corruption Prevention Unit for intelligence purposes."

22 It appears from the Internal Affairs file in relation to the complaint (Ex. 1) that the matter of the complaint was "referred for intelligence purposes", as requested by the Ombudsman's Office, on 17 March 1997, by letter from the Acting Region Commander. The evidence is silent as to what was the effect of this referral to the Corruption Prevention Unit.

23 It is clear that Harding and the respondent were in frequent contact in relation to these matters and that Harding was completely aware of their psychological impact upon him.

24 It is also clear that, apart from this preliminary investigation, culminating in the favourable report from Harding, no further steps were taken by the Commissioner in respect of the complaint. However, the existence of the complaint and the record of it in the relevant Internal Affairs file relating to it, which record would remain until at least 2006, continued to weigh heavily upon the respondent, who considered that a full investigation should have been held, in which his name would have been cleared. Expert psychiatric evidence was given linking these effects with the development of the depression which eventually led to the appellant's discharge from the police force. His Honour made the finding:

"That the events surrounding the complaint and its investigation were a substantial contributing factor to the contraction by the applicant of the disease of Major Depression referred in the certificate of the Police Superannuation Advisory Committee."

25 This finding was sufficient to entitle Mr Minahan to succeed in his Compensation Court appeal, subject only to the Commissioner's defence raised under s 11A. His Honour held, correctly in my respectful view, that the section imposed an onus on the Commissioner to prove that the depression was, relevantly, "wholly or predominantly caused by reasonable action taken in respect of the discipline of the appellant."

26 His Honour found that this defence was not made out.

27 He considered the import of the words "reasonable action" in s 11A and had regard to certain judgments given in the Compensation Court in relation to the section. He specifically adopted what was said by Geraghty J in Irwin v Director-General of School Education (unreported, 18 June 1998) namely:-

"The question of reasonableness is one of fact, weighing all the relevant factors. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of "reasonableness" is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness"

28 He also referred to what was said by Truss J in Ivanisevic v Laudet Pty Limited (unreported, 24 November 1998):

"In my view when considering the concept of reasonable action the Court is required to have regard not only to the end result but to the manner in which it was effected."

29 His Honour had before him conflicting evidence as to the appropriate course that should have been taken, having regard to Harding's inquiry and his recommendations that no further action be taken in respect of the complaint, coupled with the appellant's obvious deep concern as to the effect of the complaint's being left unresolved on his record. Harding, having interviewed the complainant, Morgan, who had done no more than relay the information given by Mr Kaisel (sometimes referred to as Kiesel) had sought to interview the latter. He encountered difficulties in locating Kaisel and abandoned any further search. He said that "the available evidence amounted to no more than a ridiculous supposition and a slur" and that it was inappropriate to devote further "investigation resources" to the enquiry. He took the view that he "would not be recommending any further action and that the matter was effectively closed." The Commissioner called evidence in support of Harding's approach. Contradictory evidence was called on behalf of Mr Minahan. His Honour's considerations and decision on this aspect of the case are set out in the following portions of his judgment, which are incorporated in the Commissioner's written submissions in this appeal:-

"An important question in relation to the present case is whether the reasonableness relates to the conduct of the employer from its point of view or whether the position of the employee is to be considered...

No doubt the fact that Harding complied, broadly at least, with the requirements of the Police Service Act and the Commissioner's Guidelines for Preliminary Inquiries is a matter to be taken into account, however, it is not determinative of the issues I have to decide.

I am prepared to accept that from the Commissioner's point of view Harding and the other Officers concerned acted reasonably, in particular in not expending further resources upon what Harding considered to be a valueless complaint.

However, I am not satisfied that they acted fairly or reasonably when the position of the applicant is taken into account. I should make it clear that I am not suggesting that Harding or the others concerned were not doing their duty as they saw it.

Whilst there was a dispute, which it is unnecessary to resolve, as to the precise effect of a file being referred for intelligence Harding could have been in no doubt that this action was of great concern to the applicant.

Further, there was to be a permanent (till 2006) record of a very serious complaint having been made which did not contain a statement or retraction by the actual complainant albeit it did contain Harding's recommendation, accepted, that no further action be taken.

A number of avenues were open, without undue effort, to try to find [Kiesel]. Whilst I do not accept Mr Dixon's submission that Harding should have initiated general [inquiries] as to the alleged offences at the Bowling Club an inquiry, perhaps on the telephone, could easily have been made as to whether the Club had a forwarding address for its employee or knew where he was going. By no means an unlikely state of affairs.

From Harding's evidence it may readily be inferred that had [Kiesel] been located a retraction was not unlikely. At least there would have been a statement from [Kiesel] which, in all probability, would have demonstrated the allegations to have no validity.

Harding and Commander Reith gave evidence that they did not consider that Harding should have pursued the matter of finding [Kiesel] further, however Senior Sergeant Murray was firmly of the view that that course should have been followed.

Whilst I was not persuaded by Murray's view that a formal inquiry should certainly have been initiated, I found his evidence as to how and why [Kiesel] should have been looked for and interviewed compelling.

It is apparent...that the applicant was not allowed meaningful input as to whether a formal inquiry should be recommended or, indeed, attempts made to find [Kiesel]. In the circumstances I consider that fairness required that the applicant's clear desire to clear his name should have been a factor in the decision making process even if, in the the end, the decision had been the same. I regard this as an additional ground upon which the process was not reasonable.

It is accepted that the onus under s.11A rests upon the Commissioner. I am not satisfied that that onus has been discharged."

30 I note, also, that his Honour, in his judgment, referred to Harding's contention that it was inappropriate to devote investigation resources to further investigate "a ridiculous supposition and a slur" and stated that "a problem with that approach in this matter" was that the "ridiculous supposition and slur" was to be "referred for intelligence". "Whatever may be the true meaning of that action I accept that the applicant believed that it could have serious consequences for his further career."

31 The Commissioner seeks to attack these findings in various ways set out in his written submissions. However, the respondent submits that it is not open to the appellant to make this attack. The present appeal is restricted by s.32(1) of the Compensation Court Act 1984 to questions of law. It is submitted by the respondent that the appellant is seeking to do no more in the present appeal than to canvass what are essentially findings of fact by his Honour. The question whether the Commissioner's actions were "reasonable", pursuant to s 11A of the Act, was productive only of issues of fact, which were litigated through evidence called on either side, and which were decided adversely to the Commissioner, in the passage set out above.

32 It appears that counsel for the Commissioner put some matters to his Honour as being questions of law for his decision. So much would appear from the following paragraphs from his Honour's judgment:-

"Mr Perrignon did make the submission that the complaint handling provisions of the Police Service Act 1990, as amended by the Police Regulation Amendment Act 1996, should be seen as having the primary purpose of protection of the public interest rather than the protection of the reputation of the individual police officer. Whether this be right or not the relevant issue here is reasonableness as required by s 11A.

No doubt the fact that Harding complied, broadly at least, with the requirements of the Police Service Act and the Commissioner's Guidelines for Preliminary Inquiries is a matter to be taken into account, however, it is not determinative of the issues I have to decide."

33 The questions embraced in these paragraphs have been raised again in this appeal, by way of submissions that relevant errors of law have occurred in his Honour's reasons.

34 It must be said that no precise error or errors of law were formulated in the Commissioner's written submissions or appeared, with any clarity, in the course of oral argument. In effect, it was submitted that, upon the findings of fact made by his Honour, which were favourable to a decision that the Commissioner's actions had been reasonable, it was, as a matter of law, required that it should be held that the Commissioner had satisfied his onus under s 11A.

35 In particular, it was put that, once his Honour had found that "from the Commissioner's point of view Harding and the other Officers concerned acted reasonably, in particular in not expending further resources upon what Harding considered to be a valueless complaint", the Commissioner had, in effect, discharged his onus of establishing the taking of "reasonable action" within the meaning of s 11A of the Act.

36 Putting the matter another way, the Commissioner appears to argue that actions taken in respect of the respondent, namely, declining to institute a formal investigation under Pt 8A of the Police Service Act, allowing the complaint to be disposed of by a preliminary inquiry which resulted only in a decision that no further action be taken in respect of the complaint, allowing the Internal Affairs complaint file to record the existence of the complaint until at least the year 2006, in a situation where it appeared on the respondent's record of service, referring, at the request of the Ombudsman, the complaint to the Corruption Prevention Unit "for intelligence purposes", were all unarguably reasonable actions on the part of the Commissioner and his Officers, entitling them to the protection of the section.

37 As a corollary to this submission, it was argued on behalf of the Commissioner that his Honour, as a matter of law, should not have taken into account in determining the issue of reasonableness, the effects of those actions upon Mr Minahan or the failure to consult his wishes in respect to any enlargement of the enquiry. In taking account of these matters, his Honour applied "the wrong test."

38 The argument is partly elaborated in the following paragraphs of the Commissioner's written submissions:-

"It cannot have been the intention of Parliament that an investigating officer should ensure that he conducts his investigations into another officer in the manner required by that officer, after consultation with him. Such a requirement:

a. is inconsistent and incompatible with the statutory scheme for investigation of police officers set up by the Police Service Act 1990, and

b. would have an effect similar to imposing upon investigating officers a duty of care towards persons under investigation, which has been repeatedly rejected by the courts in other contexts: see, for example, State of NSW v Paige [2002] NSWCA 235 and Sullivan v Moody & Ors [2001] HCA 59; [2001] 183 ALR 404".

39 It was submitted that any construction of s 11A which, in effect, required the Commissioner to consider and/or consult the interests of the officer the subject of an investigation or preliminary inquiry, would place the Commissioner in a situation of conflict of interest. On one hand he had the duty to investigate objectively, impartially and fully, any complaint and, in the process make "efficient and economical use of public resources." (Police Service Act 1990, s 7(g). On the other hand, should s 11A of the Act require that he take into account, in the way found by his Honour, the interests of the officer being investigated, so as to allow that officer to influence the content and direction of the inquiry, a conflict situation would occur. Whilst recognising that a problem of this kind might occur in some circumstances, I do not think that this fact can influence the proper construction of s 11A. No doubt, situations may arise where the needs of an investigation must necessarily over-ride considerations relating to the possible detrimental effects of the investigation upon the officer concerned. In such a situation, it may well be held that, even though harm has been inflicted on the officer the actions of the investigator were nevertheless reasonable in the circumstances. This would be a question of fact in the particular case.

40 In my view, it is not correct, as was submitted on behalf of the Commissioner, that his Honour's decision, if allowed to stand, will result in a situation where, in any inquiry or investigation into a complaint, the officer under investigation can require the Commissioner to conduct the investigation in a particular way or otherwise in the interests of the officer, in circumstances, where if this be not done, the Commissioner will inevitably be found to have acted unreasonably and be denied the defence provided by s 11A. In my view, his Honour's judgment lays down no such principles. He has simply decided the question of reasonableness in the circumstances of this particular case.

41 The gist of the submission in paragraph (b) above, based upon the authorities referred to, appears to be that, as a matter of construction of s 11A, the actions of the Commissioner and his servants cannot be relevantly unreasonable unless the acts or omissions in question constitute breaches of a common law duty of care owed to the employee. Otherwise, it is put, there would be incoherence in the law, in the nature of that referred to in Sullivan v Moody.

42 For my part, I am not prepared to adopt this view of the operation of s 11A. I am satisfied that the legislature did not intend to restrict its operation in this way. I prefer the construction which has been accorded to it in the decisions in the Compensation Court referred to in this judgment and in his Honour's judgment. The words "reasonable action", in a statute dealing with Workers Compensation rights of employees should be given a broad construction, unfettered by considerations as to whether the employee can or cannot also bring an action at common law against the employer, founded upon breach of a duty of care.

43 Accordingly, in my view, no error of law has been demonstrated in his Honour's construction of s 11A of the Act or in its application to the facts of the case.

44 I propose that the appeal be dismissed with costs.

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LAST UPDATED: 24/09/2003