Boland v SAS Trustee Corporation - [2023] NSWDC 590

District Court

New South Wales

Medium Neutral Citation: Boland v SAS Trustee Corporation [2023] NSWDC 590
Hearing dates: 5 December 2023
Date of orders: 5 December 2023
Decision date: 05 December 2023
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
The application is refused.

Catchwords:
CIVIL – WORKERS’ COMPENSATION – SPECIAL STATUTORY COMPENSATION LIST - PRACTICE AND PROCEDURE – Application for disqualification – Apprehended bias – Whether pre-judgment has been made in this matter – Allegations made by the Applicant’s solicitor in respect of unrelated matters which were attributed to handling of the present case.

Legislation Cited:
Police Regulation (Superannuation) Act 1906 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Boland v SAS Trustee Corporation [2021] NSWDC 545
Chandrasekaran v Western Sydney Local Health District (t/as Westmead Hospital) [2023] NSWCA 288
Day v SAS Trustee Corporation [2020] NSWDC 381
Ferguson v Commissioner of Police (unpublished, Neilson DCJ, 2023)
Learmont v Commissioner of Police [2015] NSWDC 136
Learmont v Commissioner of Police [2016] NSWCA 137
Learmont v SAS Trustee Corporation [2020] NSWDC 595
Learmont v SAS Trustee Corporation (unpublished, Kearns ADCJ, 18 July 2022)
Miles v SAS Trustee Corporation [2016] NSWDC 56
Miles v SAS Trustee Corporation [2017] NSWCA 86
SAS Trustee Corporation v Learmont [2023] NSWCA 272
SAS Trustee Corporation v Miles [2018] HCA 55
Wilson v SAS Trustee Corporation (No 1) [2020] NSWDC 804
Wilson v SAS Trustee Corporation (No 4) [2023] NSWDC 224

Texts Cited:
Nil.

Category: Procedural rulings
Parties: Applicant – Berrick Boland
Respondent – SAS Trustee Corporation
Representation: Applicant – Mr Stuart Gray
Respondent – Mr Lachlan Doyle

File Number(s): 2022/00154404
Publication restriction: Nil.

Judgment

Ex tempore

Background

HIS HONOUR: These proceedings were commenced by a Statement of Claim filed on 9 March 2021. The matter is three months shy of its third anniversary. The Defendant filed a defence on 20 July 2021. An Amended Statement of Claim was filed on 7 June 2021, and an Amended Defence was filed on 13 December 2021. The matter has been assigned to the Special Statutory Compensation List. I have been calling the matter over in that list since 10 May 2021. Prior to the current application, I dealt with the matter on 20 November 2023, when Mr Hammond of counsel appeared for the Plaintiff, and Mr Doyle appeared for the Defendant. The notation I made on the call-over sheet was this:

“Hammond says Gray [Mr Stuart Gray, the Plaintiff’s solicitor] may make a disqualification application because of Wilson [my decision in Wilson v SAS Trustee Corporation (No 1) [2020] NSWDC 804].”

I said to Mr Hammond that I would not fix a hearing date if a disqualification application were to be made. Mr Hammond then said that he was instructed to take a date in any event. I then advised Mr Hammond that if a disqualification application were made and granted, costs thrown away would be ordered to be paid by Mr Gray.

By a Notice of Motion filed in court on 4 December 2023 (the day before…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWDC 590
Decision Date: 05 December 2023

CaseChat Overview and Summary

In the matter of Boland v SAS Trustee Corporation, the applicant sought the disqualification of a particular judge on the basis of apprehended bias. The dispute involves workers’ compensation, and the case was before the court on the Special Statutory Compensation List. The central issue for the court was to determine whether the judge had made a pre-judgment regarding the matter, based on certain allegations made by the applicant’s solicitor.

The court examined the content of the allegations and the context in which they were made. It considered the nature of the allegations, which pertained to the handling of unrelated matters, and whether these could be reasonably construed as evidence of pre-judgment or bias. The court noted the importance of maintaining public confidence in the judicial system and the need to ensure that disqualification applications are not used as a tactical tool to undermine the integrity of judicial proceedings.

After carefully reviewing the evidence and arguments presented, the court concluded that there was no basis to find that the judge had pre-judged the matter or exhibited bias. The court emphasised the importance of a fair and unbiased judicial process and rejected the application for disqualification. Consequently, the application was refused, and no further orders were made.

Orders

Orders of the court

The application is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Boland v SAS Trustee Corporation [2023] NSWDC 590
Hearing dates:	5 December 2023
Date of orders:	5 December 2023
Decision date:	05 December 2023
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	The application is refused.
Catchwords:	CIVIL – WORKERS’ COMPENSATION – SPECIAL STATUTORY COMPENSATION LIST - PRACTICE AND PROCEDURE – Application for disqualification – Apprehended bias – Whether pre-judgment has been made in this matter – Allegations made by the Applicant’s solicitor in respect of unrelated matters which were attributed to handling of the present case.
Legislation Cited:	Police Regulation (Superannuation) Act 1906 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Boland v SAS Trustee Corporation [2021] NSWDC 545 Chandrasekaran v Western Sydney Local Health District (t/as Westmead Hospital) [2023] NSWCA 288 Day v SAS Trustee Corporation [2020] NSWDC 381 Ferguson v Commissioner of Police (unpublished, Neilson DCJ, 2023) Learmont v Commissioner of Police [2015] NSWDC 136 Learmont v Commissioner of Police [2016] NSWCA 137 Learmont v SAS Trustee Corporation [2020] NSWDC 595 Learmont v SAS Trustee Corporation (unpublished, Kearns ADCJ, 18 July 2022) Miles v SAS Trustee Corporation [2016] NSWDC 56 Miles v SAS Trustee Corporation [2017] NSWCA 86 SAS Trustee Corporation v Learmont [2023] NSWCA 272 SAS Trustee Corporation v Miles [2018] HCA 55 Wilson v SAS Trustee Corporation (No 1) [2020] NSWDC 804 Wilson v SAS Trustee Corporation (No 4) [2023] NSWDC 224
Texts Cited:	Nil.
Category:	Procedural rulings
Parties:	Applicant – Berrick Boland Respondent – SAS Trustee Corporation
Representation:	Applicant – Mr Stuart Gray Respondent – Mr Lachlan Doyle
File Number(s):	2022/00154404
Publication restriction:	Nil.