Boland v SAS Trustee Corporation

District Court

New South Wales

Medium Neutral Citation:

Boland v SAS Trustee Corporation [2024] NSWDC 428

Hearing dates:

5 - 6 March 2024

Date of orders:

6 March 2024

Decision date:

06 March 2024

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

I grant the adjournment.

Catchwords:

POLICE – SUPERANNUATION – JURISDICTION – Plaintiff asks the Court to make a decision setting aside decisions of Defendant and remitting matter back to Defendant – Court has no power to do so – If Court sets aside Defendant’s decision it must replace it with another decision - such relief not sought – Adjourned to allow Plaintiff to seek mandamus against Defendant in Supreme Court.

Legislation Cited:

Police Regulation (Superannuation) Act 1906

Cases Cited:

Aon Risk Services Australia v Australia National University [2009] HCA 27; [2009] 239 CLR 174 [5]

Boland v SAS Board [1998] NSWIRComm 155

Boland v SAS Trustee Corporation [1999] NSWIRcomm 488

Boland v SAS Trustee Corporation [2021] NSWDC 545

Boland v SAS Trustee Corporation [2023] NSWDC 590

Texts Cited:

Nil.

Category:

Procedural rulings

Parties:

Plaintiff – Berrick Boland.
Defendant – SAS Trustee Corporation.

Representation:

Counsel:
Plaintiff – Mr Hammond, M.
Defendant – Mr Ower, T.

Solicitors:
Plaintiff – Cardillo Gray Partners.
Defendant – SAS Trustee Corporation.

File Number(s):

2022/00154404.

Publication restriction:

Nil.

Judgment

Background

1. HIS HONOUR: These proceedings were commenced by a Statement of Claim filed on 9 March 2021, almost three years ago. The relief claimed in the originating process was that a decision of the defendant made on 11 September 2020 be set aside and that the Court determine that the plaintiff was incapable from an infirmity of mind, namely chronic post-traumatic stress disorder with co-morbid depression and anxiety, of discharging the duties of his office, presumably at the time that he resigned from the New South Wales Police on 10 April 1995.

2. An Amended Statement of Claim was filed on 7 June 2021. That asked that two decisions of the defendant, one made on 30 May 1991, and another made on 31 March 2020, as well as one on 11 September 2020, be set aside, but otherwise the relief sought was the same. On 12 October 21, Hatzistergos DCJ gave judgment on a notice of motion brought by the defendant. His Honour’s reasons are published: Boland v SAS Trustee Corporation [2021] NSWDC 545.

3. The motion that His Honour dealt with was a motion brought by the defendant for dismissal of the proceedings against the defendant’s refusal to consider a further application for a superannuation allowance pursuant to s10B(2) of the Police Regulation (Superannuation) Act 1906. His Honour set out the background of the matter and then pointed out that the defendant’s notice of motion filed on 20 July 2021, sought a dismissal of the proceedings for an abuse of process and, in the alternative, that the proceedings be dismissed as not being justiciable pursuant to s 21 of the Police Regulation (Superannuation) Act 1906.

4. Essentially, His Honour thought the matter was arguable, and the…