SAS Trustee Corporation v Learmont

1. [1]

   MITCHELMORE JA: The respondent, Andrew Learmont, served as a police officer in the NSW Police Force between June 1987 and 13 August 1999, when he resigned. On 3 April 2005, Mr Learmont re-joined the NSW Police Force. On 15 March 2012, he was medically discharged from service.

2. [2]

   On 20 September 2016, Mr Learmont applied for a superannuation allowance under s 10 of the Police Regulation (Superannuation) Act 1906 (NSW) (the PRS Act), relying on an injury, being depressive illness, that he suffered before his resignation on 13 August 1999. The version of s 10B(2) of the PRS Act on which the primary judge relied relevantly provided that an allowance under s 10 is not to be granted unless, among other things, the appellant, SAS Trustee Corporation, certifies that he was incapable, from the infirmity of body or mind (depressive illness), of discharging the functions of a police officer at the time of his resignation. On 29 June 2018, the appellant, by its delegate, declined to give a certificate to that effect. On 18 July 2022, the District Court, constituted by Acting Judge Kearns, set aside that decision and, in lieu thereof, granted a certificate under s 10B(2).

3. [3]

   The appellant does not challenge the primary judge’s conclusion that Mr Learmont suffered from a diagnosed depressive illness at the date of his resignation. Nor does it challenge his conclusion that the depressive illness was an “infirmity” for the purposes of s 10B(2) of the PRS Act. The focus of the ground of appeal was his Honour’s conclusion that Mr Learmont was incapable, from that infirmity, of discharging the functions of a police officer at the time of his resignation. The appellant contends that his Honour was required to consider whether the infirmity, which he found Mr Learmont was suffering, rendered him incapable, in a permanent or persistent sense, of carrying out police work at the date of his resignation. The appellant contends that his Honour failed to consider that question, and thus misapplied s 10B(2) of the PRS Act.

4. [4]

   For the reasons set out below, the appellant has established that the primary judge failed to consider the question of incapacity as that concept has been understood and applied in the context of s 10B(2) of the PRS Act. The appeal should be allowed.

5. [5]

   I note that Mr Learmont filed a Notice of Motion dated 21 March 2023, seeking orders that the Amended Notice of Appeal filed on 14 December 2022 be dismissed and that the appellant pay the respondent’s costs of that Notice of Motion and the appeal. Senior Counsel who appeared at the hearing of the appeal submitted that having regard to the manner in which the appeal had progressed, the Notice of Motion was essentially otiose. Accordingly, I have not separately addressed the Notice of Motion in these reasons.

Background to the appeal

1. [6]

   The proper construction of s 10B(2) of the PRS Act was not the subject of argument in this appeal, with both parties accepting, as did the primary judge, the construction adopted by the Court of Appeal in Day v SAS Trustee Corporation [2021] NSWCA 71 (“Day”). The appeal is concerned with the narrow question of whether his Honour’s reasons disclosed that he had considered the concept of incapacity consistently with how it has been construed in the context of s 10B(2).

2. [7]

   In Day at [5], Meagher JA (Payne and White JJA agreeing) provided the following outline of the operation of the PRS Act relevantly to an application for a superannuation allowance by a “disabled member of the police force”:

3. [8]

   I have set out in [1] above the dates of Mr Learmont’s two periods of service with the NSW Police Force. As the PRS Act does not apply to a member of the Police Force who becomes such a member on or after 1 April 1988 (see s 1A(1)), it was necessary for Mr Learmont to establish an entitlement to an allowance under s 10 of the PRS Act by reference to his first period of service, which ended with his resignation on 13 August 1999. The primary judge noted that because Mr Learmont had resigned, in order to succeed in his claim for a allowance under s 10 he needed the appellant to provide certification in the terms of s 10B(2) of the PRS Act: p2 of the transcript of his Honour’s reasons for judgment (references to page numbers below are to that transcript). It was also necessary for the Commissioner of Police to make a determination in the terms to which s 10B(3) refers; the making of that determination only arises if the applicant member of the Police Force is “duly certified under”, relevantly, s 10B(2).

4. [9]

   On 20 September 2016, Mr Learmont submitted an application for a superannuation allowance under s 10 of the PRS Act. In the application form, Mr Learmont specified “psychological injury (depressive illness)” and gave the date of the injury as 31 March 1999, referring in support thereof to a “Rehab Referral (NSWPF)”. He also specified “psychological injury (stress-related illness)”, giving the same date of injury. The material before the primary judge included a “NSW Police Service Rehabilitation Referral Form”, which stated that Mr Learmont had an injury, being a “depressive illness”, and that the date of injury was 31 March 1999.

5. [10]

   By letter to Mr Learmont’s solicitors dated 29 June 2018, the appellant notified the respondent that the Police Superannuation Advisory Committee, which is the delegated authority of the appellant, had declined to certify, in terms of s 10B(2) of the Act, that Mr Learmont “was incapable, from a specified infirmity of body or mind, of discharging the duties of his office due to 'Depressive illness'”. On 13 July 2018, a replacement letter was issued, which provided:

6. [11]

   Section 21(1) of the PRS Act provides that a person who considers himself or herself aggrieved by (relevantly) a decision made by the appellant on a matter that arises under the Act by reason of a member of the police force being hurt on duty, may, within the period of six months after the person is notified of that decision, apply to the District Court for “a determination in relation to that decision”. Mr Learmont applied to the District Court; he filed an Amended Statement of Claim in Court on 6 June 2022.

7. [12]

   In the court below, the parties drew the primary judge’s attention to an unresolved question regarding which version of s 10B of the PRS Act was applicable to the resolution of Mr Learmont’s claim: (i) the version of s 10B in force at the date of his resignation (in 1999); or (ii) the version in force at the date of his application (in 2016). At the date of Mr Learmont’s resignation, s 10B of the PRS Act relevantly provided as follows:

8. [13]

   By contrast, at the date of Mr Learmont’s application on 20 September 2016, the section provided (omitting s 10B(3), which was relevantly in the same terms):

9. [14]

   The language of s 10B in the notification letter of 13 July 2018 (see [10] above) suggests that the decision to decline to grant Mr Learmont a certificate was made in reliance on the version of s 10B(2) as in force at the date of his application. However, the parties were agreed in the court below that the differences between the two versions of s 10B(2) that I have emphasised above made no practical difference in the present case, given that Mr Learmont was performing general duties at the time of his resignation.

10. [15]

    The primary judge indicated in the reasons for judgment that he was proceeding on the basis of the version of s 10B(2) that was in force at the date of Mr Learmont’s resignation: Tcpt p2. In oral submissions on the appeal, Senior Counsel for the appellant submitted that the version of s 10B(2) on which the primary judge relied was the correct one, but called attention to other cases, including Day, that had posited (without needing to decide) that the applicable version was as at the date of application (Tcpt 19/05/23 p 2-3; see also AWS [7]). As was the case below, the issue does not need to be decided, and I would prefer to leave it for a case in which it is necessary to decide, and the Court has the benefit of argument.

11. [16]

    In Day, Meagher JA observed at [24] that s 10B(2) turns on three concepts. The first concept is an injury, which s 10B(2)(a) requires to be notified to the Commissioner of Police. There was no dispute in the present case that the requirement for notification of injury, being a depressive illness, was satisfied. The second concept is an infirmity of body or mind, which must have been caused by an injury the subject of a notification. The third concept is incapacity, in the sense that “the former member must have been ‘incapable, from that infirmity of body or mind’, of exercising the functions of a police officer at the time of resignation or retirement”.

12. [17]

    In the District Court, the second and third concepts were in issue. In its written submissions, the appellant had relevantly submitted that Mr Learmont could not satisfy the requirement for an “infirmity”, because, having regard to the only infirmity that he identified and relied on (a “depressive illness”): (i) the evidence contradicted his assertion that he was suffering from depression at the relevant time; and (ii) any condition from which he was suffering did not meet the description of an “infirmity” (at [21]).

13. [18]

    As to the third concept that Meagher JA identified in Day as forming part of the determination in s 10B(2) of the PRS Act, the appellant explained the meaning of “incapable” in its written submissions to the primary judge by reference to SAS Trustee v Daykin [2002] NSWIRComm 124 (Daykin) at [28] and Day at [30], emphasising the connotations of permanence or persistence (at [10]-[11]). The appellant referred to the history of the notion of incapability in pension legislation, and to what Dixon J said of worker incapacity in Williams v Metropolitan Coal Company Ltd (1948) 76 CLR 431 at 449, namely, that if the injured workman could resume his former work, “he could hardly be incapacitated”. Turning to the present case, the appellant submitted below that Mr Learmont could not satisfy any of the following preconditions to liability in that regard (at [18]-[19]; [35]-[38]):

    1. (1)

       First, that he “was incapable of discharging/exercising the duties/ functions of a senior constable/police officer”.

    2. (2)

       Second, that he was “rendered incapable from that infirmity – in this instance the infirmity being a depressive illness”.

    3. (3)

       Third, that he was “relevantly incapable at the time of his resignation”.

14. [19]

    Senior Counsel appearing for the appellant before the primary judge reiterated these points orally in closing submissions (Tcpt 10/06/22 at 187-189). In developing the second of the proposition I have set out in [18], Senior Counsel submitted that Mr Learmont was not rendered incapable at the relevant time and, even if he was, the incapacity did not have the “relevant degree of permanence to satisfy the requirement of the section” (Tcpt 10/06/22 at 189).

The decision of the primary judge

1. [20]

   Section 21(4) of the PRS Act provides that the District Court, after considering an application, may make a determination that the decision of, relevantly, the appellant, be confirmed (s 21(4)(a)) or “be set aside and replaced by a different decision made by the District Court” (s 21(4)(b)). Where the District Court makes a decision to which s 21(4)(b) refers, the decision “shall, for the purposes of this Act, be deemed to be made by [the appellant] … and shall be carried into effect” (s 21(6)).

2. [21]

   Mr Learmont gave evidence in the District Court, and was cross-examined. The primary judge stated that his approach to Mr Learmont’s evidence was necessarily cautious: p 3. His Honour noted that Mr Learmont’s case was that he had lied in the past about his psychological fitness and ability to carry out his duties as a police officer, including to the police (in applications to re-join the police force) and to doctors: p 3. Mr Learmont gave inconsistent evidence about why he resigned in 1999, and his evidence was inconsistent and unreliable on the subject of whether he considered that he was in fact psychologically fit and well and able to carry out his duties when he applied to re-join the Police Force: p 3-4. The primary judge did not accept Mr Learmont’s evidence “unless it is non-contentious or has objective or other credible support”: p 4-5.

3. [22]

   His Honour turned next to examining Mr Learmont’s history by reference to identified periods. As his Honour referred back to this part of his reasons in the s 10B(2) analysis, it is necessary to canvass his Honour’s summary in some detail.

4. [23]

   The primary judge noted that Mr Learmont was first posted to Castle Hill for a couple of months: p 5. He was next posted to Windsor, where he was exposed to a number of traumatic motor-vehicle accidents involving fatalities: p 5.

5. [24]

   In 1988, Mr Learmont was posted to Wagga Wagga, where he served for about 12 years: p 5. He was there exposed to a number of distressing incidents including suicides by shooting, hanging, gassing and by train; and he described having disrupted sleep and dreams: p 5. At some point after joining the police, Mr Learmont also became a heavy drinker, and experienced episodes of excessive binge drinking: p 6. In 1993, Mr Learmont also had what he called a “heavy grievance” following the death of his father: p 6.

6. [25]

   Whilst he was at Wagga Wagga, Mr Learmont started having disciplinary issues. He was involved in an altercation with an offender, who reported to the Chief Inspector that Mr Learmont had assaulted and injured him. Mr Learmont’s relationship with the Chief Inspector deteriorated after he initially accepted the offender’s account, despite contradictory evidence from other police officers and without hearing from Mr Learmont. The Chief Inspector subsequently changed his mind, without acknowledging that to Mr Learmont: p 6.

7. [26]

   In mid-1997, Mr Learmont and his partner broke up, putting an end to his plans for a six-month holiday with her. In October 1997, he first saw a doctor, Dr Morice, a psychiatrist, for depressive illness with suicidal thoughts: p 6. Mr Learmont’s history to Dr Morice was confined to the breakdown of his relationship with his partner, an earlier breakup, and the death of his father: p 7. Although Mr Learmont gave evidence in the court below that it was not the breakup that caused his depression, the primary judge did not accept that evidence. His Honour described it as “hardly plausible” that if there were more significant causes of his depression than the breakup, Mr Learmont would not have reported those to Dr Morice: p 7.

8. [27]

   In the first of the two reports he prepared in 1997, Dr Morice opined that Mr Learmont had a mixed condition of depression and obsessive compulsive disorder (OCD). In the second report, which is not dated but which his Honour found was prepared in late 1997, Dr Morice noted that Mr Learmont had “finally recovered from his quite severe depression with some obsessional features”: p 7. Dr Morice further stated:

9. [28]

   Dr Keith, a general practitioner, provided a medical certificate dated 16 December 1997, stating that Mr Learmont had been under treatment for severe depression and was off work from 29 September 1997 to 1 November 1997: p 8. Mr Learmont resumed normal duties and was able to do his work: p 8. However, he gave evidence that through 1997 and 1998 it was increasingly difficult for him to carry out some of his duties that involved dealing with people. Mr Learmont found Superintendent Bradshaw, who had recently become the commander at Wagga Wagga, confronting and scary. He described having problems with his sleep and being short-tempered, verbally abusive and anxious: p 8.

10. [29]

    On 16 March 1998, Mr Learmont was referred to the police psychologist, Jennifer Lette, in Sydney, when he was recovering from a depressive illness. At some point in 1998, he was placed on station duties: p 9. On 16 December 1998, Dr Keith described Mr Learmont as being depressed again and certified him as unfit for the day.

11. [30]

    Senior Sergeant Hogno, a shift supervisor at Wagga to whom Mr Learmont spoke about his problems with Superintendent Bradshaw, gave evidence in the court below that while he considered Mr Learmont to be a “bit lax” in the performance of his duties in 1994, by mid-1999 he considered that his work performance and mental health were deteriorating. Mr Hogno gave evidence that he did not think Mr Learmont was in the right emotional space to perform his duties; he witnessed Mr Learmont at the police station in tears, and recalled Mr Learmont telling him that he (Mr Learmont) could not carry on anymore: p 9. Another police officer, Mr Goodyer, who was stationed at Wagga Wagga between 1997 and 1999, said that Mr Learmont came to his attention in March 1999, at which time he considered Mr Learmont’s performance and attitude to be below par: p 10.

12. [31]

    On 29 March 1999, Mr Learmont attended a meeting with Mr Goodyer and Superintendent Bradshaw, and potentially others. Mr Goodyer gave evidence that shortly before the meeting, Mr Learmont was displaying severe symptoms of anxiety. During the meeting, Mr Learmont was offered other options but said that he wanted to stay at work. He went on sick leave after that meeting: p 10.

13. [32]

    On 31 March 1999, Dr Mishricky, a general practitioner, declared Mr Learmont unfit to work until 7 April 1999. On 14 April 1999, Dr Mishricky declared Mr Learmont unfit from 7 April to 10 April 1999; he issued another certificate on the same date noting depressive illness.

14. [33]

    On 7 April 1999, Mr Learmont saw the police psychologist, Michelle Mattar, who noted things such as difficulty controlling temper, anger, sleep disturbance and frustration; that he had “belted up” another police officer at work; and that he believed his boss was bullying him: p 11. By letter dated 20 April 1999 to the Police Medical Officer seeking an appointment for Mr Learmont, Superintendent Bradshaw noted that he had spoken with Dr Mutton, a psychologist with the Police Service, who had told him that Mr Learmont had a history of depressive illness and that it would be advisable for him to seek assistance. Superintendent Bradshaw noted that this information was also supplied to him by the Police Association and expressed a concern, from a risk management perspective, that Mr Learmont was not fit for operational duty based on what Dr Mutton had told him. He requested an urgent appointment to assess Mr Learmont’s capacity to return to full duty.

15. [34]

    On 29 April 1999, Mr Learmont saw Dr Mutton who noted anxiety and depression two years ago, the split up with his partner “with increased depression”, his father’s death and drinking, sleep disturbance, frustration, anger and a temper. On 30 April 1999, Dr Mutton referred Mr Learmont to Mr Flockton, a psychologist, for a psychological assessment.

16. [35]

    Mr Flockton saw Mr Learmont on 11 May 1999. Mr Learmont told him that he was struggling with work at the time, that he was depressed, withdrawn and agitated, could not deal with people, and was looking for opportunities outside the police force. Mr Flockton recorded his own observations of Mr Learmont (his noticeably tense posture and mild to moderate distress evident by apprehension and handwringing) and expressed the following opinion:

17. [36]

    Sometime after the 29 March 1999 meeting, Mr Learmont had returned to work on normal duties but, according to Mr Goodyer, nothing changed as to his attitude, performance and demeanour: p 12. Mr Goodyer noted that Mr Learmont continued to clash with Superintendent Bradshaw, in a period that his Honour found commenced sometime before the March 1999 meeting and continued until his resignation in August 1999: p 12.

18. [37]

    On 13 July 1999, Mr Goodyer and another officer had a meeting with Mr Learmont about two specific failures at work and his overall performance and attitude. He was directed to attend a further appointment with Mr Flockton, and one was arranged for 3 August 1999, but Mr Learmont did not attend. Instead, he handed in his resignation, effective from 13 August 1999: p 12. Mr Goodyer’s view was that Mr Learmont was not able to carry out his duties as a police officer: he was disinterested, clearly unwell, and not complying with the return to work plan to see the doctor: p 12.

19. [38]

    In the earlier section of his reasons on Mr Learmont’s credibility, the primary judge had noted that Mr Learmont gave inconsistent accounts over time about the reasons for his resignation: p 4. In proceedings relating to a back injury that he sustained in the course of his work as a police officer, Mr Learmont gave evidence in 2014 that his resignation was a combination of his bad back and his conflict with Superintendent Bradshaw: p 14. In the present proceedings, he gave evidence that at the time he resigned in August 1999, he was suffering from symptoms of depression causing incapacity in carrying out his work: p 13. The primary judge did not accept his evidence.

20. [39]

    Mr Baker, a lifelong friend of Mr Learmont, gave evidence that after Mr Learmont was transferred to Wagga Wagga, he became a “harder” person who was more withdrawn and paranoid. He was drinking more and was in a really bad place: p 12.

21. [40]

    His Honour noted that in 1999, Mr Learmont commenced working at The Duke of Kent hotel in Wagga Wagga. He subsequently purchased the hotel with a friend. His evidence was that while he initially felt relief from stress, things eventually deteriorated: p 15.

22. [41]

    The primary judge referred to progress notes from Community Mental Health that were in evidence, which noted many contacts with Mr Learmont between March 2000 to June 2000: p 15. The records detailed that he had been diagnosed with OCD and depression in 1997, was experiencing difficulty sleeping, and had low energy levels, poor concentration and irritability. The kind and intensity of the symptoms varied: p 15-16.

23. [42]

    During this period, Mr Learmont saw Dr Wright, a psychiatrist: p 16. In notes of a visit on 3 April 2000, Mr Learmont presented with symptoms of depression and anxiety. His condition improved once he began taking prescribed medication. However, on 20 July 2000, Mr Learmont was voluntarily admitted to Wagga Base Hospital, discharging himself the next day. The discharge summary recorded that he was admitted as depressed with suicidal ideation; the doctor who assessed him as an outpatient the next day noted he had a severe recurrent depressive episode; and that his medication should be changed: p 16. On 24 July 2000 Mr Learmont saw Dr Wright again, who noted his depression was improving and that he was planning on returning to work later that week: p 16.

24. [43]

    In October 2000, Mr Learmont met Mrs Learmont; she gave evidence before the primary judge, and his Honour found her to be a truthful witness. In mid-2001, the couple were engaged, and in 2002 they were married. Mrs Learmont gave evidence that before they were married, she had not seen or heard anything from Mr Learmont to alert her to his history of psychological issues, such as depression: p 16-18. However, she did observe him suffering periodically from nightmares: p 17.

25. [44]

    Starting in late 2000, Mr Learmont made a series of attempts to re-join the police force: p 18. On 20 November 2000, Dr Wright saw Mr Learmont, who noted that he had remained well for the past few months with no symptoms of depression: p 18. In a letter dated 11 December 2000, Dr Keith stated that he had treated Mr Learmont back in 1997 for a significant depressive illness; he had made a good recovery with treatment; and he was currently in good health: p 20.

26. [45]

    The primary judge made the following findings about the answers that Mr Learmont gave in the various forms he filled in, and the other material he submitted, in support of his application to re-join the police force, at p 21:

27. [46]

    The primary judge’s conclusion in this regard was supported, in his view, by what Mr Learmont reported to Professor Robertson, a psychiatrist, many years later, in making a claim for his post-traumatic stress disorder (PTSD). Professor Robertson reported that during a consultation with Mr Learmont on 3 August 2012, Mr Learmont said that at the time of re-joining he was in a good state of mental health: p 23.

28. [47]

    In support of a further attempt to re-join the police force in 2003, Dr Keith completed a section of the application form in which he described Mr Learmont as having “improved substantially” and being “much more stable”: p 23. In a report of Dr Lewin, psychiatrist, dated 15 December 2003, Dr Lewin mentioned that Mr Learmont had reported three distinct episodes of depression, with the two most recent episodes occurring seven years ago and four years ago, and in the context of “intense feelings associated with a relationship break-up”: p 23-4. Dr Lewin also noted that Mr Learmont had since experienced a range of life stressors and had experienced no further difficulty. He further stated:

29. [48]

    In the context of a further application to re-join that Mr Learmont submitted in January 2004, Mr Learmont saw Dr Tym, a psychiatrist, on 4 February 2004: p 24. He saw Dr Tym again on 6 May 2004: p 24-25. Dr Tym concluded that there was no evidence of any mental illness, past or present, and no evidence of any personal disorder. However, Mr Learmont gave evidence to the primary judge that he provided a false history to Dr Tym: p 25-26. Mrs Learmont, who attended these appointments with Mr Learmont, agreed that he had given an untruthful history Dr Tym. She did not correct that history because she knew Mr Learmont was trying to get back into the police force: p 25.

30. [49]

    Mr Goodyer opposed Mr Learmont’s initial application in 2000, but he revised his position in relation to the subsequent applications after meeting with Mr Learmont and his wife: p 21. He was unaware of Mr Learmont’s admission to hospital, which was a matter of concern: p 23.

31. [50]

    On 4 April 2005, Mr Learmont re-joined the police force: p 26. He was initially posted to Adelong, where for the first few years he undertook his duties fully and adequately: p 26. After a couple of years he attended what he described as “several awful incidents”, including one involving a deceased child in an esky under a house, which affected him considerably: p 26-7. In about 2009, Mr Learmont began having nightmares and became defensive, depressed, anxious and withdrawn. A discharge summary from Batlow Hospital dated 25 February 2007 noted that he was diagnosed with and/or investigated for left-sided chest pain and anxiety: p 27. Mrs Learmont described his condition as deteriorating from when he was at Adelong, with him drinking more, being moody and experiencing more nightmares: p 27.

32. [51]

    In about 2010 or 2011, after a posting at Junee, Mr Learmont was transferred to Wagga Wagga: p 27. In her evidence, Mrs Learmont described a massive change in Mr Learmont when they returned to Wagga Wagga, mentioning anger, nightmares, frustration and controlling behaviour. She described things as being “pretty bad” between 2011 and 2013: p 17. A former colleague who was posted to Wagga Wagga in about 2010-2011 gave evidence that he thought Mr Learmont was lazy, withdrawn, a sad sack, and that he was depressed: p 27. Mr Baker also gave evidence that he observed Mr Learmont’s condition deteriorating when he returned to Wagga Wagga: p 28.

33. [52]

    On 15 December 2010, Mr Learmont saw Ms Wagner, a psychologist, in the context of a psychological claim associated with a back injury. In her report dated 4 January 2011, she diagnosed him with “major depressive disorder, recurrent” : p 28. On 16 November 2011, Dr George, psychiatrist, diagnosed Mr Learmont with PTSD with a possibility of mild major depression: p 28. On 2 November 2010, Dr Smith, psychiatrist, examined Mr Learmont and diagnosed him with PTSD in association with a major depressive disorder: p 28.

34. [53]

    On 15 March 2012, Mr Learmont’s employment was formally terminated as he was medically unfit, because of PTSD: p 28. On 3 August 2012, he saw Professor Robertson who reported:

35. [54]

    Kearns ADCJ commenced his analysis as follows at p 29:

36. [55]

    As his Honour recognised, the first question raised the further question of “what is an infirmity”. His Honour referred in that context to what Meagher JA said in Day at [30]-[32], reproducing the following parts of that passage from Meagher JA’s reasons:

37. [56]

    The primary judge then set out the three elements that the appellant had submitted that Mr Learmont had to prove, and which, in its submission, he was unable to satisfy, stating at p 30:

38. [57]

    His Honour commenced his analysis with the time when Mr Learmont came under Dr Morice’s care in October 1997: p 30. His Honour accepted the view that Dr Morice expressed at the time, that Mr Learmont had developed his quite severe depression as he was prone to depression and had faced “a major life event”; and that he was at risk of similar episodes in the future: p 30. The primary judge stated at p 31:

39. [58]

    The primary judge next noted that following his treatment in 1997 and his return to work, Mr Learmont “continued to have problems”: p 31. His Honour referred to the evidence of the lay witnesses about their observations of Mr Learmont, and to contemporaneous records, including the reference to him undergoing psychological testing in March 1998. His Honour also noted that Dr Keith, his general practitioner, assessed him as being depressed again in December 1998: p 31.

40. [59]

    The primary judge next referred to Ms Mattar’s review of Mr Learmont on 7 April 1999 (as requested by Superintendent Bradshaw), recording sleep disturbances, anger, temper, problems with frustration and an altercation with another police officer. His Honour also noted Dr Mishricky’s diagnosis of depressive illness on 14 April 1999; and the further observations of Ms Mattar at the end of April 1999. His Honour referred to Mr Flockton’s report of May 1999, and the lay observations of Mr Hogno, Mr Goodyer and Mr Baker, whose evidence his Honour accepted: p 32. On the basis of the contemporaneous evidence and witness evidence, his Honour reached the following conclusion at p 32:

41. [60]

    The primary judge next referred to the Community Mental Health records between March 2000 and July 2000 (which post-dated Mr Learmont’s resignation), noting that his initial presentation for assessment of depressive symptoms and OCD was consistent with “the diagnosis made by Dr Morice back in 1997”. There was then the report of Dr Wright, of July 2000, noting that Mr Learmont’s major depressive disorder was improving but he remained on medication. His Honour accepted “that in the period from March 2000 to July 2000 the plaintiff was suffering from a major depressive episode that was resolving towards the end of that period”: p 33 (emphasis added).

42. [61]

    As to the period between Mr Learmont meeting Mrs Learmont in October 2000 and marrying her in 2002, his Honour considered that two things could be said of the fact that Mrs Learmont saw nothing to alert her to any history or current condition of depression (p 33):

43. [62]

    The primary judge described Mr Learmont as a vulnerable person in the sense that he was “prone to depression and at risk of developing depressive symptoms”: p 33. Even on the occasions, after November 2000, when Mr Learmont sought to rejoin the police force and thought himself psychologically and emotionally well, his Honour cited the following evidence as pointing to “lingering concerns” (at p33-34):

    1. (1)

       Dr Keith’s description of Mr Learmont, in December 2000, as being “currently” in good health;

    2. (2)

       Dr Keith’s report, in October 2003, that Mr Learmont had improved substantially in the last three years, and was “much more stable”, leaving what his Honour considered was “a lingering concern as to just how stable he was”; and

    3. (3)

       the report of Dr Lewin on 15 December 2003 which diagnosed recurrent unipolar major depression, then in remission, with a significant risk of recurrence.

44. [63]

    His Honour did not accept the opinion of Dr Tym: p 34. His Honour considered that Dr Tym’s view flew in the face of the Community Mental Health records and the contemporaneous observations of lay witnesses, none of which Dr Tym had access to: p 34.

45. [64]

    Kearns ADCJ made the following finding at p 34-35:

46. [65]

    His Honour then referred to the reports of the expert psychiatrists who gave evidence in the hearing, Dr Diamond for Mr Learmont and Dr Parmegiani for the appellant, and found that nothing in their reports altered the views he had expressed. As to Dr Parmegiani, he had opined that Mr Learmont’s presenting symptoms were consistent with chronic PTSD or persistent major depression, but found no convincing evidence that he had those conditions when he resigned. The primary judge did not accept Dr Parmegiani’s opinion, noting that the history on which he relied was “incomplete in significant ways”, without access to the Community Mental Health records from 2000 or the benefit of the personal observations of the witnesses in the period leading up to Mr Learmont’s resignation: p 35.

47. [66]

    As to Dr Diamond, the primary judge accepted the appellant’s submission that he had been wrong to assume that Mr Learmont remained unwell and disabled as at November 2000. Nonetheless, this mistaken assumption did not undermine the opinion that Dr Diamond expressed, which was as follows and which his Honour accepted at p 36:

48. [67]

    His Honour stated that even if he were wrong to accept the opinion of Dr Diamond, the view Dr Diamond expressed was one that he took independently, on the basis of the other evidence, for the reasons he had already expressed: p 36. His Honour continued at 36-7:

49. [68]

    The appellant had advanced two other factors in support of its argument that the infirmity on which Mr Learmont relied, if established, was not the sole basis for the asserted incapability, namely, Mr Learmont’s back injury and his relationship with Superintendent Bradshaw: p 37. The primary judge did not accept evidence that Mr Learmont was incapable by reason of his back condition: p 37. As to Mr Learmont’s relationship with Superintendent Bradshaw, Mr Learmont’s evidence was unreliable and could not support a conclusion that he was incapable by reason of that relationship, noting that it did not commence until after he had been diagnosed with his depressive condition. His Honour stated that “[i]nsofar as the relationship affected the plaintiff it may be seen as either a stressor giving rise to his symptoms, or a symptom of his condition”: p 38 (emphasis added).

The appeal

1. [69]

   The appellant did not dispute that Mr Learmont suffered from a diagnosed depressive illness at the time of his resignation in August 1999. Nor did the appellant dispute that it was open to his Honour to conclude that a depressive illness is an infirmity in the sense used by Meagher JA in Day at [32], namely, “a persisting psychiatric condition from which full recovery is unforeseeable” (even though his Honour found that it was an illness that had periods of remission) (AWS [38]).

2. [70]

   The appellant’s central contention on the appeal was that it was necessary for the primary judge to consider the second of the issues it had raised in the court below, namely, whether Mr Learmont was incapable, in a permanent or persistent sense, from carrying out the functions of a police officer as at the date of his resignation (AWS [41]). The appellants relied in this respect on Day at [30]-[32] (AWS [10]). Meagher JA stated at [30] that both “infirmity” and “incapacity” have connotations of permanence or persistence. His Honour further stated in relation to “infirmity”, at [32], that the only understanding of that term that was consistent with its role in the scheme of the PRS Act was “as denoting a condition giving rise to an incapacity that is likely to continue ‘for the foreseeable future’ (Daykin at [24]) or, to use the Thomas J’s expression, which is ‘durable and not transient’” (emphasis added).

3. [71]

   I accept the appellant’s submission. The infirmity that his Honour found was a depressive illness of a particular kind. According to his Honour, it manifested itself in severe episodes of symptoms when exposed to appropriate stressors: p 36. Absent such stressors, his Honour accepted that Mr Learmont could be in a state of remission for periods, even long periods, during which he would not manifest any symptoms. The period between meeting his future wife in mid-2001 and marrying her in 2002 was an example.

4. [72]

   His Honour found that at August 1999, Mr Learmont was “suffering from symptoms of depression”: p 35. The stressors that had led to a manifestation of those symptoms were of a personal nature: the death of his father and the breakdown of a relationship (his Honour having rejected as “hardly plausible” Mr Learmont’s evidence that there were other causes that he had chosen not to report (see [26] above)).

5. [73]

   His Honour’s reasons reveal consideration of the nature of Mr Learmont’s infirmity, and its persistence. However, the second of the three elements that the appellant advanced below, and which his Honour accepted Mr Learmont needed to establish, was that at the date of his resignation he was incapable of carrying out his duties as a police officer, on a permanent or persistent basis, from the infirmity: which, as his Honour described it, was an underlying depressive illness, the symptoms of which Mr Learmont manifested episodically and in response to certain stressors. As the appellant submitted, the reasons do not disclose that his Honour considered that question of incapability in the requisite sense of whether the incapacity was likely to be permanent, or at least present for the foreseeable future. (AWS [43]-[45]).

6. [74]

   The closest his Honour came to addressing incapability in the requisite sense was his statement that “history has revealed that police work is one of the stressors that is prone to cause [Mr Learmont] to suffer severe episodes of symptoms of his depressive illness and for that reason he should not undertake it”: p 36-37. However, the question that s 10B(2) poses is whether the applicant is “incapable”, in a permanent or persistent sense, of discharging the duties of a general duties police officer as at the date of his resignation by reason of an infirmity that, his Honour found, involves an episodic onset of symptoms. His Honour’s conclusion that Mr Learmont should not undertake police work, by reason of unspecified “history”, does not constitute consideration of that question. The oral submissions of Senior Counsel for the appellant to this effect have force (Tcpt 10/05/23, 10.47-50, 11.35-50).

7. [75]

   Mr Learmont did not dispute that it was necessary for the primary judge to consider whether his depressive illness caused him to be permanently or persistently incapable of carrying out or discharging his duties as a police officer as at August 1999. However, he submitted that there was a significant body of material to support the view that his Honour had done so (RWS [1]-[2]). Addressing in turn the material on which Mr Learmont relied:

   1. (1)

      His Honour’s specific reference to the relevant passage from Day at [30]-[32] (RWS [3]): Citation of the correct authority does not provide significant assistance if the reasons do not otherwise indicate that it was followed.

   2. (2)

      His Honour’s statement that he was mindful of the appellant’s submissions about the three elements of which his Honour needed to be satisfied (RWS [4]): Notwithstanding the accurate recitation of the appellant’s submissions and the statement that he was mindful of them, the part of the reasons to which I have referred in [74] most closely approaches the second of the elements that the appellant identified; and it does not consider the permanence or persistence of Mr Learmont’s incapacity by reason of the infirmity his Honour articulated.

   3. (3)

      His Honour’s consideration of the matter in the passage that I have extracted above at [67] (RWS [5]): This is the same passage to which I have just addressed in (2).

   4. (4)

      His Honour’s acceptance of Dr Diamond’s opinion “to the effect that the respondent’s depressive illness meant that [he] was simply incapable of continuing in his role as a police officer” at the time of resignation and was unable to “maintain employment as a police officer” (RWS [6]): There is no disputing Dr Diamond’s opinion of Mr Learmont’s incapability at the date of resignation. The question is whether that incapability was of a permanent or persistent nature. The passage from Dr Diamond’s report on which Mr Learmont relies did not address that issue.

8. [76]

   The respondent also submitted that there was material before the primary judge to support his conclusion that at the time of Mr Learmont’s resignation, he was suffering from a depressive illness which might recur from time to time rendering him permanently incapable of discharging his duties as a police officer in the future, relying on the reports of Dr Morice and the evidence of the lay observations of Mr Learmont at the time of his resignation, from witnesses such as Mr Goodyear, Mr Hogno and Mr Baker (RWS [8]-[13]). What his Honour relied on that material for, however, was the existence of the infirmity, being the depressive illness once it was triggered.

9. [77]

   Senior Counsel for Mr Learmont on the hearing of the appeal submitted that the trial proceeded on the basis that permanency of the infirmity informed the permanency of the incapability (Tcpt 19/05/23 p 14-16), and so much may be accepted. However, the appellant put the latter in issue: it was not enough, in its submission, for Mr Learmont to suffer from an infirmity (if one were found). Consistently with authority, Mr Learmont also had to establish that he was rendered incapable, in a permanent or persistent sense, of carrying out the duties of a police officer, from that infirmity, at the time of resignation. The reasons do not disclose the necessary engagement with the question of whether Mr Learmont was incapable in that sense, by reason of a depressive illness, active symptoms of which were triggered by stressors but which could otherwise be in remission.

10. [78]

    The failure of the District Court to consider the permanency or persistence of Mr Learmont’s incapability amounted to a failure to take into account a mandatory relevant consideration, which was material: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40; [1986] HCA 40 (Mason J); Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 at [88] (Gordon, Edelman, Steward and Gleeson JJ).

Conclusion

1. [79]

   The appeal should be allowed. Although Senior Counsel for Mr Learmont submitted during the hearing that in the event the appeal was allowed, the matter should be remitted to Acting Judge Kearns (Tcpt 19/05/23 p 18), the appropriate order is to remit it to the District Court and for that Court to make the decision as to the further listing of the matter.

2. [80]

   Consistently with what was sought by the appellant in the Amended Notice of Appeal, I propose the following orders:

   1. (1)

      Appeal allowed.

   2. (2)

      Set aside the orders of the District Court made on 18 July 2022.

   3. (3)

      Remit the matter to the District Court to be determined according to law.

   4. (4)

      The parties bear their own costs of the appeal.

   5. (5)

      The costs of the trial before Acting Judge Kearns abide the outcome of the remitted hearing.

   6. (6)

      The respondent’s notice of motion dated 21 March 2023 is dismissed.

3. [81]

   BASTEN AJA: The respondent, Andrew Learmont, served as a police officer over two periods, but the present appeal relates to the first period, from June 1987 until August 1999. On 13 August 1999, he tendered his resignation, which was accepted. Seventeen years later, on 20 September 2016, he applied to the SAS Trustee Corporation (STC) for an annual superannuation allowance under s 10 of the Police Regulation (Superannuation) Act 1906 (NSW) (1906 Act). [1] That claim was rejected by the STC on 29 June 2018. On 18 January 2019, the respondent commenced proceedings in the District Court, seeking a determination that the STC’s decision be set aside and the Court declare that he was “incapable from an infirmity of mind, namely, depressive illness, of discharging the duties of his office at the date of his resignation on 13 August 1999”.

4. [82]

   On 18 July 2022, Acting Judge Kearns allowed the appeal, set aside the STC’s decision and made a determination in terms similar to that sought by the applicant in his original statement of claim. [2] (The variation from the original statement of claim reflected a change in the 1906 Act in 2006 which will be addressed shortly: nothing turns on it for the purposes of this proceeding.)

5. [83]

   The STC appealed to this Court, alleging an error in point of law, within the terms of s 142N of the District Court Act 1973 (NSW). For the reasons set out below, the appeal should be allowed, and the orders of the District Court set aside.

Determination of relevant law

1. [84]

   The criteria for the grant of an annual superannuation allowance are set out in s 10B of the 1906 Act. The determination made in the District Court, that the respondent was incapable of “personally exercising the functions of a police officer referred to in s 14(1) of the Police Act 1990”, reflected an amendment to s 10B(2) effected by the Superannuation Legislation Amendment Act 2006 (NSW). The STC submitted that the use of the amended terms resulted from a mistaken understanding as to the operation of the statute. That submission should be accepted. However, as there appear to be decisions of this Court to the contrary, it is appropriate to identify the reason why the submission should be accepted.

2. [85]

   One of the earlier decisions was Swift v SAS Trustee Corporation. [3] Mr Swift had resigned in November 1981 but had not sought a superannuation allowance until March 2004. His application was determined in December 2007, and, on appeal, by the District Court in June 2009.

3. [86]

   Between the date of his application and the date of decision, various provisions, including s 10B, were amended. While the issue as to the relevant date was noted, s 10B was set out in the judgment as at the date of the decisions of the STC and the District Court. [4] The temporal issue was, however, important primarily in relation to s 9A(4), dealing with the commencement of a pension, which was also amended in 2006. It will be necessary to refer to that provision shortly in considering the scheme of the 1906 Act. Swift held that s 9A(4) should be applied as at the date of the decision. Swift was not concerned with the criteria of entitlement under s 10B.

4. [87]

   The operation of s 10B was addressed by the Industrial Court in SAS Trustee Corporation v Ainsworth. [5] At the time of his original claim in 1997, Mr Ainsworth was certified as having a mental condition, but not physical injuries to his knees, on which he sought to rely in his 2008 application. The Industrial Court held that the 2006 amendments could operate disadvantageously to an applicant, and that, absent a clear indication to the contrary, they should not be given retrospective effect. In fact, the failure to give retrospective operation to the amendments acted adversely to Mr Ainsworth. As an officer in a senior sedentary position, the physical condition of his knees did not affect his capacity to carry out the functions of that office. Only if his capacity were judged against the general duties of a police officer would he have qualified for an additional medical infirmity. The Industrial Court rejected his claim that the new provision had retrospective operation to the date of his medical discharge.

5. [88]

   In Locker v SAS Trustee Corporation [6] , the Industrial Court applied the principle established in Ainsworth, having considered whether a different view was required based on the decision of this Court in SAS Trustee Corporation v Cox. [7] The Industrial Court held that, although Cox identified the relevant date as the date of the application, the same result followed as if it had been the date of resignation, because both preceded the 2006 amendments.

6. [89]

   However, it is necessary to identify the approach adopted in Cox. This Court was unanimous in allowing the appeal and remitting the matter to the District Court, because that Court had assessed the question of infirmity by reference to the post-2006 provisions. Again the issue in dispute was a decision as to the commencement date of the pension, pursuant to s 9A(4). It was the identification of considerations to be taken into account with respect to the possible backdating of the pension which gave rise to the appeal. McColl JA accepted the date of application as the relevant date. Although Campbell JA (with whose reasons Sackville AJA agreed) stated that he “substantially” agreed with the reasons of McColl JA, he added additional reasons, including the following passages, which are ambivalent on this point:

7. [90]

   The next case was Day v SAS Trustee Corporation. [8] Day did not turn upon which version of the legislation was applied, but, in passing, Meagher JA observed (with the agreement of Payne and White JJA):

8. [91]

   In fact, as Meagher JA further noted at [8]-[9], proceedings in the District Court had been argued and decided by reference to the form of legislation after the amendments in 2006 (and 2007), but as no issue was taken by either party with that approach, the appeal was decided on the same basis.

9. [92]

   SAS Trustee Corporation v Colquhoun [9] involved a further appeal from a decision under s 9A(4) of the 1906 Act. Although, in a footnote White JA stated that references to the 1906 Act were to the provisions in force at the time of the application, and not at the time of the resignation of the officer, referring to Cox and Day, the operation of s 9A(4) may, as already noted, require a different analysis to the operation of s 10B(2).

10. [93]

    In these circumstances there has been no clear ruling of this Court as to whether amendments to s 10B, being primarily those in 2006, are to be applied with respect to circumstances of incapacity which arose prior to their commencement. There is no doubt that they had a substantive operation and were not merely procedural in their effects. The question is whether they affected a vested right to a particular outcome, or the exercise of a discretionary power to confer a particular benefit.

11. [94]

    The better view is that the 1906 Act conferred a vested right, subject to establishing the factual elements upon which the right was based. That is, if satisfied as to the relevant elements identified in ss 10 and 10B, the STC had no discretion to refuse an annual superannuation allowance to an applicant. However, that conclusion must turn on the proper construction of the applicable provisions. Two matters need to be addressed. First, it is not easy to identify the source of the statutory entitlement. Section 10B(1) and (2) refer to an allowance which may be granted “under section 10”. Section 10(1B) refers to an allowance which “may be granted under this section”, but is primarily directed to a rejection of any need to establish a particular length of service. However, as indicated in Swift, s 10(1B) appears to be an implied, if not an express, source of the entitlement. [10] Secondly, the conditions identified in s 10B are largely expressed in negative terms. Thus, relevantly for present purposes, s 10B(2) provides that an allowance “shall not be granted … unless” certain conditions are satisfied. Nevertheless, that language supports the implication that where the conditions are satisfied an entitlement to an allowance follows.

12. [95]

    There are various circumstances in which the conferral of a power does not merely result in the creation of a hope or expectation, but of a right to an outcome in circumstances where certain specified conditions are met. In New South Wales Aboriginal Land Council v Minister Administering the Crown Lands (Consolidation) Act and the Western Lands Act, [11] Hope JA held that the rights conferred under the Aboriginal Land Rights Act 1983 (NSW) fell into that category, stating: [12]

13. [96]

    If the STC, or the District Court, had some discretion to refuse to certify a claim of incapacity, it is difficult to envisage the circumstances in which it could refuse to do so. There is no known example under the current terms of the 1906 Act of either body purporting to exercise such a discretion. As will be noted shortly, there are various steps to be taken in determining a claim for an allowance under s 10. Fulfilment of the conditions set out in s 10B(2) and (3) leads, as held in Day, to “the former member [being] … entitled to a superannuation allowance”. [13]

14. [97]

    By contrast with s 10B, s 9A(4), dealing with the time from which payments should commence, is undoubtedly discretionary. The comparison tends to support the view that a certificate of incapacity under s10B is not.

15. [98]

    Although the issue does not arise for present purposes, a similar inference of entitlement should be drawn from s 10B(3), which requires the Commissioner of Police to decide whether the infirmity to which the certificate relates was caused by “the former member having been hurt on duty” and the date or dates on which that occurred. That decision, like the decision of the STC under s 10B(2), is subject to an appeal under s 21. The Court has a power to make a determination, either (a) to confirm the decision of the Commissioner or the STC, or (b) to set it aside and replace it with a decision made by the Court. Again, there is no suggestion that the Court has a discretion to refuse to make a decision in favour of an applicant, if otherwise satisfied that the relevant criteria have been fulfilled. As Hope JA noted in Winbar Claim (No 2), the consequence was to prevent legislation enacted after the making of the claim diminishing the rights of the claimants. Similarly, changes in circumstances after the claim would not permit refusal of the claim if at the time it was made, it satisfied the statutory conditions.

16. [99]

    No doubt a statutory entitlement can be varied or extinguished by a later statute, but the intention to do so must be expressed, or must arise from a necessary implication. Neither condition was satisfied with respect to the 2006 amendments to s 10B. Accordingly, the relevant form of the section was that applicable in August 1999 when the claimed entitlement arose.

17. [100]

    Although it may be said that the amendment to s 9A(4) had the potential effect of undercutting the pre-existing entitlement of the officer, the section is in terms which require a different view to that taken with respect to the conditions in s 10B. Section 9A(4) was, at all relevant times, in a form which conferred a discretionary power. Prior to the amendments, it read:

18. [101]

    In the present case, as noted above, the application for the allowance was lodged on 20 September 2016. Accordingly, the current form of s 9A(4) should apply, if an allowance is granted.

19. [102]

    Before turning to the circumstances of the present appeal, it is important to note the structure within which the decision under review was made. For that purpose s 10B, as in force in August 1999 relevantly provided:

20. [103]

    To qualify for an allowance, the respondent was required to satisfy three conditions. The first was notification to the Commissioner, before his resignation and within six months of receiving the injury, that he had suffered the injury. The fact of notification was not in dispute, although the document in which notice was given was not specifically identified. The matter was one of importance, because the injury to be identified in the notice was that which “caused the member’s infirmity of body or mind”: s 10B(2)(a). However, the Court was referred in submissions to a “NSW Workers Compensation Medical Certificate” dated 14 April 1999 and signed by Dr Mishricky (the respondent’s general practitioner at the time) which stated that the respondent was suffering from “depressive illness”, and giving 31 March 1999 as “the date of injury” and “onset of complaint”. For the purposes of the appeal, it was assumed that the relevant infirmity of mind was “depressive illness”.

21. [104]

    The second condition was the certification by the STC (or the District Court on appeal) that the former member “would have been incapable, from that infirmity of body or mind, of discharging the duties of the member’s office at the time of the member’s resignation”: s 10B(2)(b). The term “that infirmity” clearly refers to the infirmity identified in the notification to the Commissioner. It is this condition which was the subject of the appeal.

22. [105]

    The third condition was the decision of the Commissioner that the infirmity to which the STC’s certificate relates “was caused by the former member having been hurt on duty”. That step has not been reached. However, the importance of the third condition is that the infirmity must be one which is capable of having a causal relationship to work as a member of the police force. The phrase “hurt on duty” is defined to mean “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”. [14]

23. [106]

    The difficulty in the present case arises from the need to identify an injury causing an “infirmity of … mind” where the injury must involve being hurt on duty. This means that it may be important to distinguish the disabling aspects of an infirmity from its underlying causes. With post-traumatic stress disorder, it is usually possible (and perhaps necessary) to be able to identify a traumatic stressor which has triggered a condition which is likely to be permanent. However, being prone to or susceptible to “depressive illness” does not necessarily fall within the same category. Yet susceptibility, where the depressive illness, rather than the susceptibility itself, may be triggered by conditions of work, will not satisfy the causal nexus for the Commissioner to certify the infirmity as caused by being hurt on duty. Similarly, in respect of the exercise undertaken by the STC under s 10B(2), the STC must be able to identify the injury which “caused” the infirmity in order to identify the infirmity as one which rendered the former officer incapable of discharging the duties of his office at the time of his resignation. Unless that distinction has been made with sufficient clarity, neither the exercise required of the STC nor that required of the Commissioner will be able to be carried out in the sequential chain.

24. [107]

    A similar analysis of the statutory scheme may be found in SAS Trustee Corporation v Woollard: [15]

25. [108]

    The proper construction of s 10B was authoritatively addressed by Meagher JA in Day, starting with the structure:

26. [109]

    After observing that, subject to cancellation in changed circumstances under s 16, a superannuation allowance under the 1906 Act “is payable for life”, the reasons in Day turned to the enduring nature of a qualifying incapacity:

Determination of appeal

1. [110]

   Although it is not easy to summarise the foregoing distinctions succinctly, in my view they were adequately encapsulated in the single ground of appeal, which read as follows:

2. [111]

   Some further elaboration of this ground is required. The misapplication of a legal principle does not necessarily invoke an error in point of law. However, the language of failure to consider a particular matter in effect identifies the non-application of some element of the statutory test.

3. [112]

   Secondly, for the reasons explained above, reference to “infirmity” must be understood as a shorthand for “that infirmity” which has been caused by “the injury” and notified to the Commissioner.

4. [113]

   Thirdly, the complaint that the issue of incapacity to discharge the duties of the member’s office (or carry out relevant duties as a police officer) at the time or date of the officer’s resignation was not addressed, engages the identification of that element of the infirmity which could have that causative effect, and was able to be so identified in August 1999.

5. [114]

   For the reasons explained below, the ground of appeal should be upheld. That is so, although the primary judge clearly and properly identified relevant issues for determination. It appears that the failure to address the critical issue occurred because the judge treated the infirmity of “depressive illness” as equivalent to a susceptibility to a depressive illness. There was no evidence that that susceptibility arose from any “injury” in the sense in which that term must be understood in s 10B. (The term “injury”, cannot have a different meaning in subss (2) and (3).)

6. [115]

   Before turning to the reasoning of the primary judge, it is convenient to have regard to the nature of the evidence upon which the certification could be based. For reasons which will be explained, the existing evidence at the date of the respondent’s resignation in August 1999 was at best ambivalent as to whether there was any injury of a kind which could be described as arising out of or in the course of his employment, [16] as to which employment in the police force was a substantial contributing factor, [17] and which caused an infirmity which rendered him incapable of carrying out his duties as a constable.

7. [116]

   Further evidence was adduced as to subsequent events and subsequent medical assessments. However, caution must be taken in the use of such evidence in establishing a state of affairs at an earlier point in time. As was explained by Hope JA in Housing Commission of New South Wales v Falconer: [18]

8. [117]

   If retrospectant evidence can confirm a foresight as at the date of the relevant event, it can also displace the foresight. In the present circumstances, two factors were important. First, events over the five years following the respondent’s resignation did little to confirm that, in the course of his employment with the police force, he had suffered an injury which could have caused the infirmity of depressive illness. Secondly, the fact that he returned to the police force in 2005 and continued to work as a constable for some seven years, on its face contradicted the existence of an infirmity in 1999 leading to a permanent incapacity to work as a police officer.

9. [118]

   The primary judge in effect found that the respondent returned to his employment in the police force under false pretences, by misrepresenting both to the police and to medical practitioners who assessed his mental health, the nature and extent of his then current condition. While that consideration may have diminished the force of the mere circumstance of him returning to employment as a police officer, its effect in limiting the significance of his period of employment (some seven years) is less obvious. Whatever his views as to his own mental health and his willingness to dissemble in relation to them, the evidence of his further service in the police force could have had a direct bearing upon a finding as to his incapacity to discharge the duties of a police officer in August 1999. That it was not so treated was supportive of the appellant's case that the judge did not address himself to that question.

10. [119]

    The judge’s reasons may be address in three parts. The first concerns the circumstances in August 1999, based on contemporaneous evidence of past events. The second concerns the state of the evidence at the time he rejoined the police force on 3 April 2005. The third concerns subsequent events and medical diagnoses.

11. [120]

    The judge commenced by considering the period when the plaintiff came under treatment from Dr Morice in October 1997. The judge continued: [19]

12. [121]

    The judge immediately summarised the position in the following terms: [20]

13. [122]

    Throughout 1998 there were references in the medical evidence to “depressive illness” and “sleep disturbances, anger, temper, frustration” and occasional outbursts at work. In May 1999, the respondent saw a psychologist for anger management.

14. [123]

    The judge concluded his summary of the evidence as at the time of his resignation in the following terms: [21]

15. [124]

    There are features of this reasoning which support the appellant’s case. First, there are repeated references to the appellant being a person “prone to” and “at risk of” suffering depression, which descriptions appear to be equated with the existence of a “depressive illness”. While actual states of depression are described, they appear to have been episodic: no clear distinction was drawn between susceptibility to depression and episodes of depressive illness. If the susceptibility to depression had been triggered by any particular event, it appears to have been either the breakdown of his personal domestic relationship, or the death of his father, or both. There was no evidence of, and no finding that, a susceptibility to depressive illness was an injury arising out of or suffered in the course of his employment. At that stage, it may have been the case that he was “incapable of discharging his duties” as a police officer while suffering bouts of depression, but no finding to that effect was made on the basis of the evidence as to his circumstances up to August 1999. It is to be recalled that “incapacity” requires a finding of likely indefinite continuity. Although the judge had correctly identified the relevant questions, [22] he did not at this stage make a finding as to the nature of the infirmity of “depressive illness” nor as to whether it incapacitated the respondent from discharging the duties of his office.

16. [125]

    The second period commenced with the months from March 2000 to June 2000. Some seven months after he had left the police force, he had a further period of major depressive disorder, over some three or four months.

17. [126]

    With respect to the year 2000, the judge stated: [23]

18. [127]

    The judge referred to references asserting his good health in late 2000 and in October 2003, but noted that the phrase used by Dr Keith in October 2003 (“much more stable”) “leaves a lingering concern as to just how stable he was”. [25] The judge concluded with respect to that period: [26]

19. [128]

    Two key features of this conclusion were, first, the reference to “an underlying condition of major depression” and the fact that he had “periods of depressive symptoms”. There was no finding that either of those circumstances was caused by an injury in the course of his employment in the police force, whether caused by the member being hurt on duty or not. As noted above, there had to be an infirmity caused by an injury which was notified to the Commissioner.

20. [129]

    On the other hand, the appellant observed that the judge accepted the respondent’s evidence that he was well at the time of his applications to return to the police force: [27]

21. [130]

    Further, there was no finding as to the meaning of the term “remission” in relation to a psychological condition, which had only been diagnosed by reference to self-described symptoms and moods, and observable behaviours. The judge appeared to accept that if the plaintiff “felt he had no psychological symptoms impairing his ability to carry out his duties”, he was not then subject to an infirmity caused by an injury. However, the findings set out below appeared to elide the concept of susceptibility to depressive illness with an incapacitating illness, even when not symptomatic.

22. [131]

    The final conclusion of the judge appeared in the following passage, which may be divided into paragraphs numbered for convenience: [28]

23. [132]

    These findings were capable of supporting the following propositions:

    1. (1)

       in August 1999 the respondent suffered from a depressive illness which manifested itself if he were exposed to relevant stressors;

    2. (2)

       there had been two occasions (unrelated to police work) in which he had been exposed to such stressors;

    3. (3)

       the episodic symptoms disabled him from discharging the duties of his office as a constable;

    4. (4)

       other events might also have that effect;

    5. (5)

       his illness of depression was sufficiently permanent to constitute an infirmity, and

    6. (6)

       that infirmity rendered him incapable of carrying out his duties as at August 1999, and with an expectation of indefinite continuity.

24. [133]

    For the reasons explained above, the relevant infirmity must be caused by “the injury” which was notified to the Commissioner. However, the injury, if it were an episode of depression, appears not to be the injury identified by the primary judge. Rather, the “depressive illness” notified to the Commissioner appears to have been treated as the underlying susceptibility to episodes of depression in the face of stressors. There was no evidence, nor any finding, linking that infirmity to any injury. The reference to injury must have the same meaning in s 10B(2) as in s 10B(3), as an element capable of supporting a finding of being “hurt on duty”. There was no finding that the underlying condition was an injury capable of satisfying that test, nor could such a finding have been made on the evidence.

25. [134]

    The other alternative, which did not appear to be a finding of the primary judge, was that the depressive illness which had been notified to the Commissioner in 1999 was a state of major depression. That state of depression undoubtedly resolved and the post-August 1999 evidence did not permit a finding that it had the necessary element of permanence. Nor was there any finding that that form of depressive illness had rendered him incapable of working as a police officer. The absence of a finding in those terms is confirmed by the fact that no part of the judge’s reasoning addressed the accepted fact that he was well when he made applications to rejoin the police force, and had worked as a police officer for some seven years after his first resignation.

26. [135]

    The appellant’s ground of appeal assumed (correctly) that only his episodic depression was able to constitute the relevant “infirmity”. The capacity of that condition permanently to affect his employment was not addressed. The primary judge did not rely on that form of depressive illness in reaching the conclusion as to indefinite incapacity, but rather relied on the susceptibility to depression, an alternative basis of reasoning which was not open on the evidence and did not arise from a notified injury.

Conclusions

1. [136]

   For these reasons, I would uphold the appeal and set aside the primary judgment in the District Court. Because, in my view, the correct question was not addressed, it is necessary to remit the matter for a further hearing.

2. [137]

   ROTHMAN J: I have had the advantage of receiving and reading in draft the reasons for judgment of Basten AJA and, more recently, of Mitchelmore JA. With unfeigned respect, I agree with the analysis of the law and its summary in the reasons for judgment of Basten AJA. I agree also with his Honour’s analysis of the applicable provisions and summary of authority.

3. [138]

   The reasons for judgment of Mitchelmore JA are to similar effect, and, once again, I agree with her Honour’s analysis of the law. Notwithstanding my agreement with their Honours on the proper construction of the provision of the statute and the proper test to be applied, I am in the unfortunate position that I am unable to agree with their Honours on the analysis of the judgment of the District Court and the outcome of this appeal. Except as otherwise contained in these reasons, I am content to rely upon the analysis of the facts of Basten AJA, including the chronology of symptoms suffered by the respondent.

4. [139]

   In part at least, my different conclusion derives from an analysis of the nature of psychiatric illnesses and a different reading of the reasons for judgment in the District Court.

5. [140]

   First, the learned appeal judge refers in his judgment to the evidence of the respondent’s wife.

6. [141]

   The objective behaviour of the respondent is, as one would expect, relevant and important. The respondent’s wife was a nurse and later a paramedic. He described the evidence she gave as “truthful”.

7. [142]

   The appeal judge referred to the following important symptoms: the respondent’s nightmares in his sleep, including screaming, punching and kicking; the nightmares were regular, although seemingly less frequent of late; the nightmares involved images of dismemberment and assault. The respondent’s wife advised the respondent to seek psychiatric help and, when they returned to Wagga Wagga, noticed anger, nightmares, frustration, and controlling behaviour. The respondent’s wife considered these symptoms were PTSD (post-traumatic stress disorder).

8. [143]

   Ordinarily, leaving aside the position of the wife as a health professional, the lay view that the symptoms were of PTSD would not be sufficiently significant to be included in the reasons for judgment. Obviously, the appeal judge considered them so. Given the extensive experience of the judge in personal injury matters, it is important to understand the reason the judge considered this view sufficiently significant to include in his reasons for judgment.

9. [144]

   Familiarity with illness and personal injury litigation establishes the significant distinction between injury and symptoms. It is trite to note that a person may have serious, sometimes terminal, injuries without manifesting symptoms. Thus, for example, one may suffer from pancreatic cancer without suffering any symptoms until far too late. Similarly, one may clinically suffer from compression of the disc of the spine, without manifesting symptoms. Psychiatric conditions are often, if not always, in the same class.

10. [145]

    In the case of, for example, PTSD, the disorder continues until successful treatment (if treatment can be successful), but, after initial treatment, the symptoms only manifest, or may only manifest, when the patient is exposed to particular circumstances.

11. [146]

    The respondent was diagnosed with Depressive Illness and, according to the medical opinions accepted by the judge, “suffered disabling symptoms and consequent disability [arising] directly from the infirmity of Depressive Illness”. [29] According to the medical opinion accepted by his Honour, the respondent was “unable to maintain employment as a police officer” [30] at the time of his resignation in 1999.

12. [147]

    His Honour below expressed extreme caution in the manner in which the evidence of the respondent was treated. The evidence was accepted by his Honour only where it was non-contentious or otherwise corroborated.

13. [148]

    It is no part of this appeal for the Court to question that assessment, although the diagnoses and statements of various doctors included that the respondent suffered from depressive illness with suicidal ideation in which case the varying assessments of the respondent as to his own psychological or psychiatric health may have reflected a not atypical lack of insight into his own condition.

14. [149]

    The judgment below is replete with acceptance by the judge of the circumstance that the respondent was suffering “depressive illness” and/or “stress-related illness”. The judgment below deals with the traumatic incidents that occurred at Windsor and Wagga Wagga and referred to various medical assessments and diagnoses, each of which referred to the respondent suffering depressive illness at various times in the course of his career and/or the chronology with which the court was dealing.

15. [150]

    The view of Dr Diamond, accepted by his Honour in the quotation above, was the view taken independently by his Honour on the basis of the other evidence described in the judgment. His Honour referred to three elements derived from the submission of the appellant, STC, which were: “that at the relevant time the [respondent] had an infirmity being a depressive illness; that he was incapable of carrying out his duties as a police officer; and, that he was so incapable ‘from that infirmity’.” (Red 40, Judgment, p 30.M.)

16. [151]

    The appeal judge summarised his finding, at least as at August 1999, in the following passage:

17. [152]

    The judgment below then deals with the issue referred to as the “causation point”. This point is not whether the depressive illness was caused by police work, but, rather, whether the depressive illness was the cause of the respondent’s inability to carry out his duties. The ultimate causation point, namely whether police work was causative of the depressive illness, was not an issue before the court and is not an issue on this appeal. The decision-making process has not reached that stage.

18. [153]

    His Honour accepted the submissions of STC that the infirmity must be the sole basis for the incapability and not merely a factor amongst others, causing the incapacity. His Honour concluded:

19. [154]

    Earlier in the judgment, his Honour referred to the submission of STC that Dr Diamond was the only doctor who expressed the opinion that the respondent was suffering a depressive illness in August 1999. His Honour rejected that view and said that the submission did “not account for the medical evidence that spoke of the respondent’s depression in 1997, 1998, 1999 and 2000. For example, there was Dr Morice in 1997, Dr Keith in 1998, Dr Mishricky in April 1999, Dr Wright in 2000, Wagga Base Hospital and Dr Paton in 2000 and Community Mental Health from March to June 2000.” (Red 45, Judgment, p 35.)

20. [155]

    With great respect to my colleagues, a depressive illness in remission is not an indication that the depressive illness has ceased. Until cured (if a cure is possible), a depressive illness is chronic, and unless there is evidence that the remission is permanent, i.e., that the illness has been cured, remission merely indicates the disappearance of symptoms, either partially or completely.

21. [156]

    The mere fact that symptoms did not manifest at all times does not mean that the depressive illness was cured and the disappearance of symptoms does not indicate that the depressive illness has ceased. The “reappearance” of symptoms does not indicate a new “illness” or “injury” — it is, in a chronic illness, merely the manifestation, once more, of the illness that subsists. A depressive illness of the kind diagnosed is not mere depression as understood in lay terms, which is usually transient and does not meet the criteria for a depressive disorder.

22. [157]

    Basten AJA in his reasons refers to the distinction between depressive illness, on the one hand, and an illness such as PTSD, where the traumatic event can be identified. The difficulty with such a distinction is that, clinically, depressive illness can be caused by traumatic events that do not otherwise satisfy the criteria in DSM-5 for PTSD. It may well be that the combination of traumatic events suffered by the respondent, none of which individually satisfy the criteria for a trauma of a kind that allows for a diagnosis of PTSD, may have triggered the depressive illness. But that question is Stage 3 in the decision-making process and not now before the Court.

23. [158]

    The analysis of Basten AJA (see [112]-[114]) is to the effect that the illness or injury that has caused the termination must be the same illness or injury that renders the officer incapable of performing police duties. I agree with that analysis.

24. [159]

    The respondent has claimed depressive illness as the cause of his incapability to carry out his duties as a police officer. The appeal judge has found that to be so. Whether the depressive illness was caused by police work is the last step in the process and it is unnecessary, at this point, to confine the decision-making to an infirmity of mind caused by police work or exposure to risks associated therewith. That is a different “causative” issue to the analysis with which I agree above.

25. [160]

    In dealing with a first instance decision at least in the context of administrative law, it has been said that a court should not be concerned with “looseness of language” nor “unhappy phrasing”. [31] Nor should this Court on appeal construe the judgment below “minutely and finely with an eye keenly attuned to the perception of error”. [32] The converse is not the situation.

26. [161]

    Where a judge has quite deliberately distinguished particular circumstances by precise language, the precision in language should be given effect. Here the appeal judge has utilised the terms “symptoms” and “remission”, as distinct from illness or injury, or even “episode”. In a judicial officer, so experienced in personal injury, the distinction drawn by his Honour cannot have been accidental or unintended.

27. [162]

    In my analysis of the appeal judge’s reasons, the appeal judge has differentiated between the depressive illness and the symptoms of that depressive illness and has not failed to have regard to the infirmity, as distinct from a susceptibility to an infirmity. The infirmity, the depressive illness, commenced, continued, and manifested in symptoms when the respondent was exposed to certain stressors, including police work and, more particularly, particular police work.

28. [163]

    The appeal judge was not required to deal with whether the police work caused the depressive illness, only whether the depressive illness, as a consequence of which he retired, was the cause of the respondent’s incapability of performing duties as a police officer. That latter aspect was that which the certificate declined and which was the subject of the appeal.

29. [164]

    The difference between my analysis of his Honour’s reasons for judgment and that of my colleagues is that it seems my colleagues consider the question of whether the illness, which caused the retirement in 1999, was the same illness that caused the respondent’s incapability to perform duties, has not been answered or considered. I take the opposite view. It is necessary, on the majority reasons herein, for the District Court, accepting that I am in dissent, to deal with that issue.

30. [165]

    For the foregoing reasons, and with the greatest respect to my colleagues, I cannot agree with the orders proposed. I would have dismissed the appeal and ordered costs.