GOODWIN v COMMISSIONER OF POLICE [2010] NSWCA 239 (15 September 2010)

Last Updated: 16 September 2010

NEW SOUTH WALES COURT OF APPEAL

CITATION:
GOODWIN v COMMISSIONER OF POLICE [2010] NSWCA 239


FILE NUMBER(S):
2009/325725

HEARING DATE(S):
8 September 2010

JUDGMENT DATE:
15 September 2010

PARTIES:
Daniel Goodwin (Appellant)
Commissioner of Police (Respondent)

JUDGMENT OF:
McColl JA Basten JA Sackville AJA

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC RJ 4719/2001

LOWER COURT JUDICIAL OFFICER:
O'Toole DCJ

LOWER COURT DATE OF DECISION:
18 December 2009


COUNSEL:
R W Seton SC/A Naylor (Appellant)
P Menzies QC/T Ower (Respondent)

SOLICITORS:
Oates & Smith Solicitors (Appellant)
Henry Davis York Lawyers (Respondent)

CATCHWORDS:
APPEAL – civil – appeal from decision of the District Court in point of law – failure to give any or adequate reasons – failure to make findings on essential elements of applicant's case
APPEAL – civil – jurisdiction – whether there was a failure to exercise the jurisdiction conferred – [<i>District Court Act 1973</i>] (NSW), s 142N
SUPERANNUATION – review of decision – whether specified infirmity was caused by the member being “hurt on duty” – [<i>Police Regulation (Superannuation) Act 1906</i>] (NSW), s 10B(3)
WORDS AND PHRASES – [<i>District Court Act 1973</i>] (NSW), s 142N - award of the Court "in point of law"

LEGISLATION CITED:
[<i>District Court Act 1973</i>] (NSW), s 142N
[<i>Police Regulation (Superannuation) Act 1906</i>] (NSW), ss 10, 10B, 21
[<i>Supreme Court Act 1970</i>] (NSW), s 69

CATEGORY:
Principal judgment

CASES CITED:
[<i>Australian Broadcasting Tribunal v Bond</i>] [1990] HCA 33; 170 CLR 321
[<i>Azzopardi v Tasman UEB Industries Ltd</i>] (1985) 4 NSWLR 139
[<i>B&L Linings Pty Ltd v Chief Commissioner of State Review</i>] [2008] NSWCA 187; 74 NSWLR 481
[<i>Day v SAS Trustee Corporation</i>] [2009] NSWCA 222
[<i>Dranichnikov v Minister for Immigration and Multicultural Affairs</i>] [2003] HCA 26; 77 ALJR 1088
[<i>Kirk v Industrial Relations Commission</i>] [2010] HCA 1; 239 CLR 531
[<i>Minister for Immigration and Multicultural and Indigenous Affairs v SGLB</i>] [2004] HCA 32; 78 ALJR 992
[<i>Minister for Immigration and Citizenship v SZMDS</i>] [2010] HCA 16
[<i>Pettitt v Dunkley</i>] [1971] 1 NSWLR 376
[<i>Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002</i>] [2003] HCA 30; 77 ALJR 1165
[<i>SAS Trustee Corporation v Pearce</i>] [2009] NSWCA 302
[<i>Waterways Authority v Fitzgibbon</i>] [2005] HCA 57; 79 ALJR 1816
[<i>Workers Compensation (Dust Diseases) Board of NSW v Smith</i>] [2010] NSWCA 19

TEXTS CITED:


DECISION:
(1) Allow the appeal and set aside the judgment of the District Court and the order made on 18 December 2009 confirming the decision of the delegate of the Commissioner of Police.
(2) Remit the matter to the District Court for reconsideration in accordance with the decision of this Court.
(3) Order the respondent to pay the appellant’s costs in this Court.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 2009/325725

DC RJ 4719/2001

McCOLL JA

BASTEN JA

SACKVILLE AJA

15 September 2010

Daniel GOODWIN v COMMISSIONER OF POLICE

Headnote

On 26 June 1987, Mr Goodwin, the appellant, was attested as a Constable of Police. He remained in the Police Service until 5 July 2001, when he was discharged on medical grounds, on the basis that he was suffering from major depression.

On 4 July 2001 a delegate of the Commissioner determined that the appellant’s infirmity of “Major depression” was not caused by the member being hurt on duty. The appellant applied to the Compensation Court for a determination in relation to that decision. The Compensation Court was later abolished and its jurisdiction transferred to the District Court. On 18 December 2009 District Court Judge O’Toole handed down a “judgment” confirming the decision of the Commissioner.

On 17 March 2010 the appellant filed a notice of appeal challenging that decision, pursuant to s 142N of the District Court Act 1973 (NSW).

The issues for determination on appeal were:

(i) Did this Court have jurisdiction to deal with the ground of appeal, which complained of absence or inadequacy of reasons?

(ii) Did the District Court erroneously decide a question of law?

The Court held, allowing the appeal:

In relation to (i)
(per Basten JA, McColl JA and Sackville AJA agreeing):

1. Section 142N of the District Court Act 1973 (NSW) provides jurisdiction for the Court of Appeal to hear an appeal from the District Court "in point of law". Absence or inadequacy of reasons will not necessarily fall within this language: [8]-[14].

B&L Linings Pty Ltd v Chief Commissioner of State Review [2008] NSWCA 187 cited.

Day v SAS Trustee Corporation [2009] NSWCA 222; SAS Trustee Corporation v Pearce [2009] NSWCA 302; Workers Compensation (Dust Diseases) Board of NSW v Smith [2010] NSWCA 19, considered.

(per Basten JA):

2. A "failure to give any or adequate reasons", as particularised in the single ground put forward in the notice of appeal, encompassed the ground that the primary judge failed to make findings on essential elements of the appellant's case, in particular, findings in respect of the issues of causation. The issues having been identified, there must have been a decision taken that these matters did not need to be addressed. Because the issues were correctly identified, the primary judge's decision involved a failure to exercise the jurisdiction conferred, and in doing so, her Honour decided a question in point of law: [17]-[21].

Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 cited.

In relation to (ii)
(per Basten JA, McColl JA and Sackville AJA agreeing):

3. The occurrence of the traumatic events, pleaded in the appellant's amended statement of claim, was common ground. However, there was no express finding by the primary judge that these events occurred, nor any recognition of the nature and potential effects of the events. This suggests that the primary judge did not treat their occurrence as of critical significance in determining the application: [22].

(per Basten JA, McColl JA and Sackville AJA agreeing):

4. The primary judge failed to make findings with respect to the causal connection between the traumatic events and diagnosis of PTSD, and the causal connection between PTSD and major depressive illness. The possibility that the traumatic events led to a mental infirmity, that in turn led to the later events which the primary judge identified as the cause of the appellant's depression, should have been addressed. Having identified the questions of causation as central to the appellant's claim, the primary judge decided the case without determining the answers to those questions and in so doing, impliedly decided that it was not necessary to give answers. This was a decision reached by the District Court in a point of law: [23]-[43].

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 cited.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 2009/325725

DC RJ 4719/2001

McCOLL JA

BASTEN JA

SACKVILLE AJA

15 September 2010

Daniel GOODWIN v COMMISSIONER OF POLICE

Judgment

1 McCOLL JA: Like Sackville AJA, I express no opinion as to whether or not a failure by the District Court to give adequate reasons can ground an appeal pursuant to s 142N(1) of the District Court Act 1973. I otherwise agree with the orders proposed by Basten JA and with his Honour’s reasons.

2 BASTEN JA: On 26 June 1987 the appellant, Mr Goodwin, was attested as a Constable of Police. He remained in the Police Service until 5 July 2001, when he was discharged on medical grounds, on the basis that he was suffering from major depression. The issue in dispute concerned the appellant’s entitlements under the Police Regulation (Superannuation) Act 1906 (NSW) (“the Superannuation Act”).

3 The Superannuation Act provides that an annual superannuation allowance may be granted to a “disabled member of the police force”: s 10(1B). The phrase “disabled member of the police force” is defined as a member who is discharged, having been certified to be incapable of performing the duties of his office due to a specified infirmity, the infirmity having been determined, pursuant to s 10B(3), to have been caused by the member being “hurt on duty”: s 10(1). The decision under s 10B(3) is made by the Commissioner of Police. On 4 July 2001 a delegate of the Commissioner decided that the appellant’s infirmity of “Major depression” was not caused by the member being hurt on duty.

4 The appellant applied to the Compensation Court for a determination in relation to that decision, pursuant to s 21 of the Superannuation Act, as it then stood. (The Compensation Court was later abolished and its jurisdiction transferred to the District Court.) The District Court had power, after considering such an application, to make a determination either confirming the decision of the Commissioner, or setting it aside and replacing it by a different decision: s 21(4). On 18 December 2009 O’Toole DCJ handed down a “judgment” confirming the decision of the Commissioner.

5 On 17 March 2010 the appellant filed a notice of appeal challenging that decision, pursuant to s 142N of the District Court Act 1973 (NSW).

6 The right of appeal granted by s 142N is limited in ways to which it will be necessary to make specific reference below; relevantly for present purposes, it is limited to an appeal “in point of law”: s 142N(1). It follows that this Court cannot resolve factual matters, should it be satisfied of error in point of law, but must remit the matter to the District Court for determination by that Court in accordance with its decision: s 142N(2).

7 The appeal should be allowed and the matter remitted to the District Court. The fact that the appellant’s application will therefore remain undetermined, more than nine years after the appeal was lodged from the determination of the Commissioner, is far from satisfactory. The fact that the litigation remains unresolved after such a lengthy period is even more disturbing in the case of a man who, it is common ground, suffers from a serious mental illness. Part of the lengthy period appears to have been due to the proceedings in the District Court (and previously the Compensation Court) being deflected by an application in the Industrial Relations Commission and part (though only six months) to an interlocutory appeal to this Court. This Court is otherwise entirely ignorant of the circumstances causing the lapse of a significant period of time. It may be hoped that the final resolution of the litigation will be addressed expeditiously.

Jurisdiction of Court

8 For reasons which will be explained below, the approach adopted in the District Court was unsatisfactory. However, a legal obstacle to the relief sought arises from the terms in which jurisdiction is conferred on this Court. Section 142N of the District Court Act relevantly provides:

“142N Appeal to Court of Appeal on question of law

(1) If a party to any proceedings before the Court in its residual jurisdiction is aggrieved by an award of the Court in point of law or on a question as to the admission or rejection of evidence, that party may appeal to the Court of Appeal.

(2) The Court of Appeal may, on the hearing of any appeal under this section, remit the matter to the District Court in its residual jurisdiction for determination by that Court in accordance with any decision of the Court of Appeal and may make such other order in relation to the appeal as the Court of Appeal sees fit.”

9 The sole ground of appeal (set out below) is in terms a complaint of absence or inadequacy of reasons; there is some doubt as to whether such a ground is available in this case.

10 The website of this Court identifies, under the heading “NSW Statutory Appeals and referrals on questions of law” recent decisions of the Court in respect of various provisions in legislation which restrict rights of appeal to questions of law. As the Court noted in B&L Linings Pty Ltd v Chief Commissioner of State Review [2008] NSWCA 187; 74 NSWLR 481, such provisions vary in their terminology and, it has been held, in their effect. In particular, authority requires a differential approach in relation to provisions which permit an appeal on a question of law and those which permit an appeal from a decision of the tribunal below on a question of law. The latter provisions have, generally speaking, been construed as requiring the identification of a decision, whether express or implicit, in relation to a question of law which has been raised and determined by the court or tribunal from which the appeal is brought. The subject-matter of the appeal is that specific decision, rather than the final order, which will usually involve issues of law, fact and evaluation. There is no discernable pattern or purpose behind the differences in language in different statutes. Further, some limitations may be avoided by the general availability under s 69 of the Supreme Court Act 1970 (NSW) of a supervisory jurisdiction vested in this Court to provide relief in circumstances of jurisdictional error and (usually) error of law on the face of the record. That jurisdiction is subject to a level of constitutional protection: Kirk v Industrial Relations Commission [2010] HCA 1; 239 CLR 531 at [98]- [99].

11 Recent cases in this Court in relation to the scope of s 142N include Day v SAS Trustee Corporation [2009] NSWCA 222; SAS Trustee Corporation v Pearce [2009] NSWCA 302 and Workers Compensation (Dust Diseases) Board of NSW v Smith [2010] NSWCA 19. In the most recent decision of Smith, I made the following remarks with respect to a ground asserting inadequacy of reasons:

“135 In Day v SAS Trustee Corporation [2009] NSWCA 222 Giles JA (with whom Ipp JA agreed) considered that a failure to accord procedural fairness gave rise to a grievance in point of law, which was sufficient for an appeal under s 142N to succeed: at [72]. The alternative, minority, view, was that the appellant was required to identify an award or decision of the District Court in point of law, as being the subject-matter of the appeal: at [86] and [94]. In SAS Trustee Corporation v Pearce [2009] NSWCA 302 I expressed a doubt (with the agreement of Beazley JA) as to whether a failure on the part of the District Court judge to give ‘adequate reasons’ for his decision could constitute a decision of the District Court in point of law for the purposes of s 142N: at [43].

136 There is an abundance of authority in support of the proposition that a failure of a court to give adequate reasons for its findings constitutes an error of law: see, eg, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. However, whether such a failure involves a decision of the court below in point of law is less clear. There may be circumstances in which it does, but those may be restricted to the case where the court or tribunal has expressly or implicitly decided that certain matters should not be dealt with in the reasons: see Pettitt v Dunkley [1971] 1 NSWLR 376 at 383-4, referred to in Pearce at [119].

137 Further, there is something incongruous in the proposition that to reason illogically, even perversely, does not constitute error of law, but to fail to provide adequate reasons does. Decisions in point of law refer to the substance of the decision-making process and not merely its presentation.

138 The legal obligation on the part of a judge to give reasons for his or her decision derives from the nature of judicial power and the proper means of its exercise: Soulemezis at 278-279 (McHugh JA). Its role in modern jurisprudence has been to provide a mechanism of control where appeals are limited to questions or points of law or on grounds available for supervision by way of judicial review in the nature of prerogative relief. In relation to statutory appeals, limited attention has been given to the statutory context in which the matter has come before the Court. In relation to the supervisory jurisdiction, it is necessary to identify where the failure to comply with a legal obligation to give reasons fits within a scheme which does not permit review for illogicality in the reasoning process. Thus, a missed step in an argument, or the illogical drawing of an inference would not, on the latter approach, demonstrate reviewable error.

139 In circumstances where, as in the present case, the primary obligation of the trial court was to determine the matter on ‘the real merits and justice of the case’, it may be thought that on review, inadequacy of reasons should take a secondary role to considering whether the real merits and justice of the case have been addressed and a decision made on that basis. That statutory context renders it inappropriate for this Court to conduct a critique of the written reasons, not to search for error otherwise revealed, but to address an amorphous standard of ‘adequacy’.”

12 It should be noted that the comments in Smith at [137] were based on statements as to what constitutes error of law in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156-157 (Glass JA, Samuels JA agreeing) and Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 355-356 (Mason CJ). However, some doubt has been cast on the scope and operation of that principle by reference in later judgments to the need for findings or inferences of fact to be supported by “logical grounds”: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165 at [52] (McHugh and Gummow JJ, Callinan J agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at [38] (Gummow and Hayne JJ); Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 at [40] (Gummow and Kiefel JJ, dissenting); cf [113], [119] and [129]-[130] (Crennan and Bell JJ).

13 In Smith, Allsop P reserved his position with respect to the consequence for legal review under s 142N of inadequate reasons (at [2]), implying that the reasoning set out above was not necessary for the disposition of the case. Handley AJA agreed that the appellant “failed to establish that it is aggrieved by an award of the District Court ‘in point of law ...’ ..., not because it was not aggrieved but because it failed to establish any relevant error within the section”: at [162]. His Honour, whilst agreeing generally with my reasons, expressed no view on statements which were “not necessary for the decisions in these appeals”: at [163].

14 In Pearce, I noted that Asprey JA in Pettitt v Dunkley [1971] 1 NSWLR 376 at 383-384 had referred to the issue of whether a failure to give reasons could constitute an error for the purposes of the predecessor of s 142N, holding that the ground was available in circumstances where the primary judge had made a conscious decision not to deliver reasons or to state findings of fact: see Pearce at [119]. The present case, like Pearce, was one in which the primary judge not only decided to give reasons, but did so. Identification of error must therefore be addressed on a different basis in order to engage s 142N.

15 In order to consider how the present matter should be addressed, it is necessary to set out the grounds of appeal relied upon by the appellant which were contained within one paragraph, reading as follows:

“1. The trial Judge failed to give any or adequate reasons for her finding that the Plaintiff’s infirmity of ‘Major Depression’ was not caused by him having been hurt on duty, in that:

(a) the trial Judge failed to make any findings in relation to the competing expert medical opinions of consultant psychiatrists Dr Peter Klug (called by the Plaintiff) and Dr Kathryn Lovric (called by the Defendant) regarding the cause of the Plaintiff’s infirmity of ‘Major Depression’.

...

(c) the trial Judge failed to give any or adequate reasons for why the traumatic incidents, to which the Plaintiff was exposed during the course of his work as a police officer, were not a substantial contributing factor to the Plaintiff’s infirmity of ‘Major Depression’ when:

(i) the traumatic incidents were not in dispute;

(ii) it was common ground that the Plaintiff suffered from Post Traumatic Stress Disorder (PTSD);

(iii) it was common ground that the Plaintiff’s PTSD was a consequence of his exposure to the traumatic incidents;

(iv) Dr Lovric conceded that ‘depression almost inevitably develops in patients with post-traumatic stress disorder that is untreated’ and that the treatment of the Plaintiff’s PTSD had been sub-optimal.”

16 In order to understand the ground of appeal, it is necessary to note that the primary judge identified the appellant’s “central argument” in the following terms, at [36]:

“... the traumatic events, listed in paragraph 3.a to 3.l of his Amended Statement of Claim, caused a post-traumatic stress disorder. The disorder resulted in his infirmity, specified by the Police Superannuation Advisory Committee in its certificate of 27 June 2001.”

17 The “central argument” so identified involved two causal links, namely between the traumatic events and the PTSD, and between the PTSD and the major depression. If her Honour did not in fact address either the evidence or the submissions relating to the causal links, it may be inferred that her Honour thought it unnecessary for some reason to address these matters. That, the appellant submitted, constituted an erroneous decision of the District Court in point of law.

18 So long as the analysis underlying that approach can be made good, it constitutes a ground of appeal falling within the terms of the section.

19 It was put to senior counsel for the appellant, in the course of argument, that this analysis involved a failure to make findings on essential elements of the case before her, rather than inadequacy of reasons. Counsel responded that it could be put in either way and further that it was put in both ways in the notice of appeal.

20 Although senior counsel for the respondent submitted that the sole ground of appeal involved a failure to give any or adequate reasons, a proposition which was strictly correct on a literal reading of the grounds set out above, it is also clear that the ground, especially at paragraph (a) expressly complains of a failure to make findings regarding the cause of the infirmity.

21 The phrase “failure to give any or adequate reasons” is used in many senses. Commonly is it used to do no more than express disagreement with the process of reasoning or the outcome. In other circumstances, it is used to describe a failure to make findings on essential issues. Finally, and with a degree of accuracy, it may be used to describe a failure to explain how a finding actually made was arrived at. Frequently these distinctions are not borne in mind by those preparing grounds of appeal. They should be. In Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816, Hayne J (with whom McHugh and Gummow JJ agreed) stated:

“129 Reference was made in argument to the ‘sufficiency’ of the primary judge's reasons. When it is said that a judge did not give ‘sufficient’ reasons for a decision there may be some doubt about what principles are engaged. Reference may be being made to the duty of a judicial officer ‘to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal [including] not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision’. To fail to make or cause to be made such a note may invoke principles of procedural fairness and constitute a failure to exercise the relevant jurisdiction.

130 In the present case, however, reference to the ‘sufficiency’ of the primary judge's reasons is not to be understood as seeking to invoke only those principles. Rather, because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, the error identified in this case is revealed as an error in the process of fact finding. In particular, it is revealed as a failure to examine all of the material relevant to the particular issue.”

22 The error in the present case may properly be understood as a failure on the part of the primary judge to make findings in respect of the issues of causation, which she had identified as central to the appellant’s case. In other words, the failure was a failure to determine issues which she had herself identified as requiring determination. The issues having been identified, there must have been a decision taken in the course of determining the application that these matters did not, after all, need to be addressed. Because the issues were correctly identified, that approach involved a failure to exercise the jurisdiction conferred on her by statute and, in so doing, her Honour decided a question in point of law, arguably erroneously.

Failure to decide central issues

23 The critical elements in the case put by the appellant required findings as to:

(a) the occurrence of the traumatic events pleaded in paragraph 3 of the amended statement of claim;

(b) the assertion that the appellant suffered from PTSD;

(c) the assertion that the PTSD was a consequence of undergoing the traumatic events;

(d) the assertion that the major depression was a consequence of the PTSD, and

(e) a conclusion that the traumatic events were substantial contributing factors to the major depression, so as to establish the necessary causal link.

24 The appellant said that a shorter variant of that train of connections was also proposed, namely that the traumatic events directly contributed to the major depression, rather than through the intermediate step of causing PTSD.

25 The appellant’s suggestion that the occurrence of the traumatic events was common ground was not disputed at the hearing of the appeal. To dispute the events, it would have been necessary for the respondent to cross-examine the plaintiff and two family members who were called to give evidence as to the occurrence of the traumatic events. That did not happen. It may therefore be accepted that the occurrence of the events was indeed common ground. However, there was no direct finding by her Honour that these events occurred. They were referred to at the outset of her judgment, in stating the background, at [2] and [3]. At [51] her Honour stated, in summarising the appellant’s evidence:

“Despite Mr Goodwin’s obvious agitation, his ponderous delivery and his tending to emotional lability, he clearly described the events he lists in paragraphs 3.a to 3.l of his amended statement of claim. In cross-examination, Mr Goodwin agreed that all those events occurred before 1996.”

26 This should be understood as an implicit finding that the events as pleaded and described in fact occurred. The significance of the absence of any express finding, let alone any recognition of the nature and potential effects of the events, suggests that her Honour did not treat their occurrence as of critical significance in determining the application before her.

27 The second element which needed to be addressed was whether the appellant suffered from PTSD.

28 In written submissions filed in the District Court, the appellant set out the factual background to the case, the legal principles and then, at paragraph 40, commenced submissions in relation to the application of law to the facts. The submissions, after referring to the injury as “major depression” stated:

“44. It is submitted that the traumatic incidents to which the [appellant] was exposed during the course of his duties as a police officer were a substantial contributing factor to his major depression. The traumatic incidents caused the Plaintiff to develop Post Traumatic Stress Disorder (PTSD). The PTSD caused the major depression. There is no challenge to the [appellant’s] exposure to the traumatic incidents.

45. It is submitted that the principle that the Court is bound to accept the infirmity as certified by the SAS Trustee Corporation, namely, ‘major depression’, is not offended in any way by a finding that the traumas contributed to the major depression via PTSD. A finding that the [appellant] was suffering from PTSD is a finding of fact that forms part of the causal chain between the traumatic events and ‘major depression’. ...

46. The [appellant] was suffering from PTSD by about 1993 (report by Dr Klug dated 28 November 2006, p 5).

47. The [appellant] was continuing to suffer from PTSD in March 2000 when he made his first application for medical discharge (report by Dr Klug dated 28 November 2006, p 5).

48. The [appellant] was continuing to suffer from PTSD on 5 July 2001 when he was medically discharged (report by Dr Klug dated 28 November 2006, p 5).

49. Dr Sutton was of the opinion that the [appellant] had symptoms of PTSD when he was treating him. ... Both of his reports include 2001 as being a year when, according to his memory, he treated the [appellant]. ...

50. By March 2003, the [appellant] was continuing to present in a way ‘strongly consistent with posttraumatic stress disorder’ (Report by Dr Canaris dated 13 March 2003, p 7).

...

55. Dr Lovric conceded that it is possible that the [appellant] was suffering from PTSD in 1993. Dr Lovric agreed that the [appellant’s] condition of PTSD was caused only by the traumatic incidents to which he was exposed as a police officer; there were no other relevant traumatic injuries after the plaintiff ceased police work. Dr Lovric agreed that the [appellant] could have been suffering from PTSD symptoms as early as August 1987.”

29 These submissions made unmistakeably clear that the appellant’s claim was based upon a diagnosis of PTSD. In oral submissions, on 17 April 2008, counsel for the appellant stated, at Tcpt, p 15(35):

“The weight of the evidence, in my submission, your Honour, is that the [appellant] was suffering from that condition that it had an impact upon his major depression. As I’ve submitted previously it’s entirely on the facts able to be found he suffering from a post traumatic stress disorder as part of the causal chain. That’s the primary submission, your Honour.”

30 The primary judge could not dispose properly of the application before her without addressing that submission and the evidence upon which it was based. As is apparent from the material set out above, the evidence primarily relied upon was Dr Klug’s report of 28 November 2006. Her Honour noted that the appellant had consulted Dr Klug (she put it the other way around) on four occasions, the last being 27 November 2006: at [113]. She stated that after the initial report, “Dr Klug advised [the appellant’s solicitors] on Mr Goodwin’s applications for discharge from the police force, on the traumatic events, pleaded in paragraphs 3.a to 3.l of the amended statement of claim, and on [the appellant’s] claims for superannuation”. Her Honour continued at [114]:

“Dr Klug’s oral evidence contextualised his cumulative advice to [the solicitors] and the histories he had received piecemeal when Mr Goodwin was ‘profoundly distressed’ by ‘an intense effort to talk about distressing memories’ .... Those histories corroborate Mr Goodwin’s evidence in cross-examination and the records of his police service, made by the Commissioner of Police and NSW Police Service.”

31 There followed, a lengthy summary of the history given to Dr Klug on 24 August 1999 and subsequent events. Her Honour concluded:

“120 In September 2000, Mr Goodwin appeared to be depressed and ‘was reluctant to talk about his police work and the associated stresses’ but he was ‘functioning reasonably well’ intermittently. Mr Goodwin said that ‘in retrospect’, he had grown to ‘hate dead people ... can remember them all ...’. Dr Klug did not ask about those ‘dead people’ nor about the ‘heaps of fatals’, which Mr Goodwin had mentioned in August 1999. Dr Klug hypothesised that Mr Goodwin’s anxiety, excessive sweating, irritability, nightmares and hypervigilance were symptoms of a post-traumatic stress disorder ...

121 On 2 November 2000, Dr Klug surmised that Mr Goodwin’s major depressive disorder had been superimposed upon a chronic post-traumatic stress disorder.”

32 Her Honour made no findings at that stage as to whether or not she accepted Dr Klug’s opinion that the appellant was suffering from post-traumatic stress disorder caused by the traumatic events.

33 Her Honour summarised the evidence of Dr Lovric at [130]-[131]. No mention is made of the reliance placed by the appellant on Dr Lovric.

34 Her Honour made no relevant reference to the diagnosis of PTSD in her conclusions.

35 The third element concerned the causal connection between the traumatic events and the diagnosis of PTSD. As her Honour had not made any finding with respect to PTSD, it is unsurprising that her conclusions made no reference to this causal element.

36 The fourth step in the reasoning relied upon by the appellant was the causal connection between PTSD and major depressive illness. As the appellant noted, both Drs Klug and Lovric gave evidence of such a connection. Again, because her Honour had made no finding in relation to PTSD, her conclusions did not refer to this element.

37 The critical paragraphs in her Honour’s conclusions were as follows:

“133 The evidence does not persuade me that any of the incidents, pleaded by Mr Goodwin in paragraphs 3.a to 3.l of his Amended Statement of Claim, caused or resulted in his infirmity of major depression. Mr Goodwin does not persuade me that his infirmity of major depression was caused by his being hurt on duty.

134 It seems to me that the preponderance and medical and paramedical evidence supports Dr Sara Murray’s, Dr Peter Klug’s, Dr Tom Norris’ and Dr Kathryn Lovric’s premise that Mr Goodwin’s clinically significant depression dates from early 1997 .... In early 1997, Mr Goodwin’s incapacitating depression was caused by prolonged marital disharmony, by his separation from Ms Michelle Coulston and by his extramarital affair. Mr Goodwin’s incapacitating depression affected his work adversely.”

38 A number of comments are necessary in relation to this reasoning. First, if her Honour’s reference to “the evidence”, at [133], was intended as a reference to the evidence summarised above, it failed to take account of Dr Klug’s opinion, expressed in his report of 28 November 2006, which was simply not addressed.

39 Secondly, it failed to engage with the submission, which had a basis in evidence which her Honour appeared to accept, that all the traumatic events preceded 1996 (referring to the respondent’s submission at [49] and the appellant’s evidence at [51]) and thus the period in early 1997 when his personal and work life started to fall apart and it became apparent that he was suffering from depression. The possibility that the earlier traumatic events had led to a mental infirmity which in turn led to the later events which her Honour identified as the cause of his depression, should have been addressed. It would have been sufficient if the earlier traumatic events had been “a substantial contributing factor” to the major depression: Workers Compensation Act 1987 (NSW), s 9A.

40 In a judicial review case, Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [24], Gummow and Callinan JJ stated (Hayne J agreeing):

“24 To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice. ...

25 The question remains however whether what occurred, either characterised as a failure to accord natural justice or as that, and more, which we consider it to be, including a constructive failure to exercise jurisdiction, entitles Mr Dranichnikov to relief under s 75(v) of the Constitution.”

41 Their Honours concluded that the Tribunal had failed to exercise its statutory jurisdiction and the applicant was entitled to relief in the form of certiorari and prohibition.

42 In the same case, Kirby J stated at [88]:

“88 Obviously, it is not every mistake in understanding the facts, in applying the law or in reasoning to a conclusion that will amount to a constructive failure to exercise jurisdiction. But where, as here, the mistake is essentially definitional, and amounts to a basic misunderstanding of the case brought by an applicant, the resulting flaw is so serious as to undermine the lawfulness of the decision in question in a fundamental way.

89 The applicant has established a constructive failure on the part of the Tribunal to exercise its jurisdiction and power in reviewing the decision of the delegate. Prima facie, he is therefore entitled to the issue of the constitutional writs that he seeks and the associated relief of certiorari to make such writs effective.”

43 This is not a case of judicial review: however, if it were, it is undeniable that the error is one of law, going to the jurisdiction of the Court. A failure to exercise jurisdiction would warrant the intervention of this Court under s 69 of the Supreme Court Act. Although such relief was not sought in the present case, other relief is available in the particular circumstances of this case under s 142N of the District Court Act. The error, as explained above, is that, having identified the questions of causation as central to the appellant’s claim, her Honour decided the case without determining answers to those questions. In doing so, she impliedly decided that it was not necessary to give answers. That was a decision reached by the District Court on a point of law.

Conclusion

44 The appellant has made good his claim for relief and is entitled to the following orders:

(1) Allow the appeal and set aside the judgment of the District Court and the order made on 18 December 2009 confirming the decision of the delegate of the Commissioner of Police.

(2) Remit the matter to the District Court for reconsideration in accordance with the decision of this Court.

(3) Order the respondent to pay the appellant’s costs in this Court.

45 SACKVILLE AJA: Save that I wish to express no opinion as to whether or not a failure by the District Court to give adequate reasons can ground an appeal pursuant to s 142N(1) of the District Court Act 1973, I agree with the orders proposed by Basten JA and with his Honour’s reasons.

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LAST UPDATED:
15 September 2010