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District Court 2 June 2006

Gary Remoundos v The Commissioner of Police

[2006] NSWDC 40

Other
POLICE PSYCHOLOGICAL INJURY RESIGNS APPEAL FROM DECISION LATER COMPLAINT BY SENIOR OFFICER CONVICTION AND IMPRISONMENT

Citation: Gary Remoundos v The Commissioner of Police [2006] NSWDC 40
Court: District Court of New South Wales
Date: 6 February 2006 (ex tempore judgment)
Judge(s): Neilson DCJ

Background

The appellant was a former Senior Constable who served with the NSW Police Force from 1986 until his resignation in January 2002. During his career, he was posted to the Petersham and Marrickville stations, where he performed general duties policing before moving to licensing duties in 1998. His service was marked by a series of significant departmental incidents, including two unfounded allegations that delayed his promotion for approximately five years, a later complaint by a senior officer, and a criminal investigation that led to what the court characterised as a punitive transfer.

The appellant last worked as a police officer on 7 February 2000. He applied for a medical discharge in July 2001, but resigned before that application was finalised. In April 2003, the Police Superannuation Advisory Committee (PSAC) certified that, at the time of his resignation, he was incapable of performing his duties due to "chronic dysthymic disorder with anxiety features" (a persistent depressive condition accompanied by anxiety).

The Commissioner of Police determined in May 2003 that the appellant's psychological infirmity was not caused by his having been "hurt on duty," which is the threshold required under the Act for superannuation benefits. The appellant appealed that determination to the District Court. The case was substantially complicated by the fact that, after leaving the police force, the appellant had developed a drug habit, engaged in drug trafficking, and was convicted and imprisoned. The trial judge expressly found him to be an unreliable witness.

  • Whether the appellant's "chronic dysthymic disorder with anxiety features" was caused by his having been "hurt on duty" within the meaning of the Police Regulation (Superannuation) Act 1906 (NSW), s 1(2)
  • Whether the psychological disorder arose out of or in the course of the appellant's employment as a police officer
  • Whether the appellant's subsequent serious criminal conduct and lack of credibility affected the legal entitlement to superannuation benefits under the Act

Decision

Neilson DCJ described this as the most factually difficult case he had encountered in 12 years of determining appeals under the Act. Despite finding the appellant to be an untrustworthy witness, the judge analysed the evidence independently, relying on corroborated material rather than the appellant's own testimony.

The court found that the psychological disorder did arise out of or in the course of the appellant's employment. The departmental incidents, including the unfounded allegations that stalled his promotion and the investigation leading to his punitive transfer, were identified as the principal causes of the condition. The disorder therefore met the statutory definition of "hurt on duty."

The judge was candid that reaching this conclusion was morally uncomfortable, describing it as "morally repulsive" to make a finding entitling the appellant to a police pension given his subsequent criminal conduct. However, the court held that legal obligation required the appeal to be decided on the evidence and the applicable law, not on moral grounds. The court invoked the principle "fiat justitia dum ruant caeli" ("let justice be done though the heavens fall") to explain why the outcome, though distasteful, was legally required.

The judge noted separately that the Commissioner's decision to contest the appeal was entirely justified and in the public interest. The court would have ordered the appellant to bear his own costs and the defendant's costs had it been legally open to do so, given that the appeal was contested as a direct result of the appellant's own misconduct. However, no such costs order was available under the applicable law.

Orders Made

  • The Commissioner of Police's decision of 13 May 2003 is set aside
  • The court determined that the appellant's infirmity of "chronic dysthymic disorder with anxiety features" was caused by his having been hurt on duty on 7 February 2000
  • The defendant is ordered to pay the appellant's costs

Key Takeaways

  • The District Court held that a former police officer's serious post-service criminal conduct, including drug trafficking and imprisonment, does not automatically defeat an otherwise established "hurt on duty" claim under the Police Regulation (Superannuation) Act 1906.
  • Under the Act, the relevant inquiry is whether the certified infirmity arose out of or in the course of employment; the officer's subsequent moral or criminal failings are not part of that statutory test.
  • A finding that a witness is a perjurer and generally unreliable does not preclude an appeal succeeding where other corroborated evidence independently supports the necessary causal connection.
  • The court emphasised that even deeply uncomfortable legal outcomes must be determined according to law and evidence rather than the judge's personal moral assessment of a claimant.
  • Neilson DCJ expressly commended the Commissioner for contesting the appeal, noting that cases of this nature are properly the subject of full litigation in the public interest, even where the legal outcome ultimately favours the claimant.

Legislation and Cases Referenced

Legislation:
- Police Regulation (Superannuation) Act 1906 (NSW), s 1(2) (definition of "hurt on duty"), s 10B(2), s 21 (appeal rights)
- Workers Compensation Act 1987 (NSW), s 47

Cases:
- Calman v The Commissioner of Police (1999) 16 NSWCCR 389
- Townsend v The Commissioner of Police (1992) 25 NSWCCR 9