Boland v SAS Trustee Corporation - [2021] NSWDC 545

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Boland v SAS Trustee Corporation [2021] NSWDC 545
Hearing dates: 20 September 2022 and 6 October 2021
Plaintiff’s supplementary written submissions 7 October 2021 and Defendant’s supplementary written submissions 7 October 2021
Date of orders: 12 October 2021
Decision date: 12 October 2021
Jurisdiction: Civil
Before: Hatzistergos DCJ
Decision:
(1) The Defendant’s Notice of Motion is dismissed
(2) I will hear from the parties as to costs

Catchwords:
INTERLOCUTORY MOTION –– Motion for dismissal of proceedings for abuse of process pursuant to UCPR 36.14 – Consideration of principles applicable –
Dismissal not appropriate where matters of fact and law are debateable
JURISDICTION –– Application of section 10B(1) of the Police Regulation (Superannuation) Act 1906 (NSW) to a former police officer – Status of previous decision of the Industrial Court in Court Session in Berrick Boland v SAS Trustee Corporation in light of SAS Trustee Corporation v Rossetti holding that the Industrial Relations Commission in Court Session lacked jurisdiction – Whether the previous decision of the Industrial Relations Court in Court Session in respect of s 10B(2) of the Police Regulation (Superannuation) Act 1906 (NSW) precluded the District Court from hearing a further application under s 21 of the Police Regulation (Superannuation) Act 1906 (NSW) by reason of issue estoppel and res judicata
STATUTORY INTERPRETATION –– Application of s 48 of the Interpretation Act 1987 (NSW) to s 10 B (2) Police Regulation (Superannuation) Act 1906 (NSW)

Legislation Cited:
Police Regulation (Superannuation) Act 1906 (NSW), ss 10B, 21
Superannuation Administration Act 1996 (NSW), s 88
Interpretation Act 1987 (NSW), ss 3, 5, 48
Uniform Civil Procedure Rules 2005 (NSW), r 13.4

Cases Cited:
Berrick Boland v SAS Trustee Corporation [1999] NSWIRComm 488
Blair v Curran (1939) 62 CLR 464
Cameron v Cole (1944) 68 CLR 571
Collier v State of New South Wales (No 2) [2014] NSWSC 1359
DMW v CGW (1982) 151 CLR 491
Jennings v Commissioner of Police (1996) 13 NSWCCR 640
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
Macks, Re; Ex parte Saint (2000) 204 CLR 158
Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
Residual Assco Group v Spalvins (2000) 202 CLR 629
Richardson v SAS Trustee Corporation (1999) 18 NSWCCR 423
SAS Trustee Corporation v Rossetti [2018] NSWCA 68
Schinnerl v The Commissioner of Police [1992] NSWCA 224
Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405
Sleiman v Gadalla Pty Ltd [2021] NSWCA 236
State of New South Wales v Williams (2014) 242 A Crim R 22
Tomlinson v Ramsay Food Processing Pty Ltd (2015) 256 CLR 507

Category: Procedural rulings
Parties: Berrick Boland (Plaintiff)
SAS Trustee Corporation (Defendant)
Representation:
Counsel:
Mr T Hammond (Plaintiff)
Mr T Ower (Defendant)
Solicitors:
Cardilo Gray Partners (Plaintiff)
Mark Bendall Solicitor for the SAS Trustee Corporation (Defendant)

File Number(s): RJ 00058 of 2021
Publication restriction: Nil

Judgment

These proceedings concern a motion for dismissal of proceedings brought…

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: [2021] NSWDC 545
Decision Date: 12 October 2021

CaseChat Overview and Summary

In Boland v SAS Trustee Corporation, the plaintiff, Berrick Boland, a former police officer, sought an interlocutory motion for the dismissal of proceedings against the defendant, SAS Trustee Corporation, for alleged abuse of process. The application was brought before the District Court of New South Wales. The central issue was whether the court should dismiss the proceeding based on the principles of abuse of process under UCPR 36.14. The court also had to determine the applicability of section 10B(1) of the Police Regulation (Superannuation) Act 1906 (NSW) to a former police officer, specifically assessing the status of a previous decision made by the Industrial Court in Court Session in Berrick Boland v SAS Trustee Corporation in light of the later holding in SAS Trustee Corporation v Rossetti. This holding established that the Industrial Relations Commission in Court Session lacked jurisdiction. Additionally, the court needed to consider whether the previous decision of the Industrial Relations Court in Court Session regarding s 10B(2) of the Police Regulation (Superannuation) Act 1906 (NSW) precluded the District Court from hearing a further application under s 21 of the Police Regulation (Superannuation) Act 1906 (NSW) due to issue estoppel and res judicata. Finally, the court needed to interpret s 48 of the Interpretation Act 1987 (NSW) as it applied to s 10 B (2) Police Regulation (Superannuation) Act 1906 (NSW). The court found that the matters of fact and law were debatable, leading to the dismissal of the defendant’s Notice of Motion. The court further ordered that the parties would be heard on the issue of costs.

Orders

Orders of the court

(1) The Defendant’s Notice of Motion is dismissed

(2) I will hear from the parties as to costs

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 [2021] NSWDC 545
Hearing dates:	20 September 2022 and 6 October 2021 Plaintiff’s supplementary written submissions 7 October 2021 and Defendant’s supplementary written submissions 7 October 2021
Date of orders:	12 October 2021
Decision date:	12 October 2021
Jurisdiction:	Civil
Before:	Hatzistergos DCJ
Decision:	(1) The Defendant’s Notice of Motion is dismissed (2) I will hear from the parties as to costs
Catchwords:	INTERLOCUTORY MOTION –– Motion for dismissal of proceedings for abuse of process pursuant to UCPR 36.14 – Consideration of principles applicable – Dismissal not appropriate where matters of fact and law are debateable JURISDICTION –– Application of section 10B(1) of the Police Regulation (Superannuation) Act 1906 (NSW) to a former police officer – Status of previous decision of the Industrial Court in Court Session in Berrick Boland v SAS Trustee Corporation in light of SAS Trustee Corporation v Rossetti holding that the Industrial Relations Commission in Court Session lacked jurisdiction – Whether the previous decision of the Industrial Relations Court in Court Session in respect of s 10B(2) of the Police Regulation (Superannuation) Act 1906 (NSW) precluded the District Court from hearing a further application under s 21 of the Police Regulation (Superannuation) Act 1906 (NSW) by reason of issue estoppel and res judicata STATUTORY INTERPRETATION –– Application of s 48 of the Interpretation Act 1987 (NSW) to s 10 B (2) Police Regulation (Superannuation) Act 1906 (NSW)
Legislation Cited:	Police Regulation (Superannuation) Act 1906 (NSW), ss 10B, 21 Superannuation Administration Act 1996 (NSW), s 88 Interpretation Act 1987 (NSW), ss 3, 5, 48 Uniform Civil Procedure Rules 2005 (NSW), r 13.4
Cases Cited:	Berrick Boland v SAS Trustee Corporation [1999] NSWIRComm 488 Blair v Curran (1939) 62 CLR 464 Cameron v Cole (1944) 68 CLR 571 Collier v State of New South Wales (No 2) [2014] NSWSC 1359 DMW v CGW (1982) 151 CLR 491 Jennings v Commissioner of Police (1996) 13 NSWCCR 640 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 Macks, Re; Ex parte Saint (2000) 204 CLR 158 Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 Residual Assco Group v Spalvins (2000) 202 CLR 629 Richardson v SAS Trustee Corporation (1999) 18 NSWCCR 423 SAS Trustee Corporation v Rossetti [2018] NSWCA 68 Schinnerl v The Commissioner of Police [1992] NSWCA 224 Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405 Sleiman v Gadalla Pty Ltd [2021] NSWCA 236 State of New South Wales v Williams (2014) 242 A Crim R 22 Tomlinson v Ramsay Food Processing Pty Ltd (2015) 256 CLR 507
Category:	Procedural rulings
Parties:	Berrick Boland (Plaintiff) SAS Trustee Corporation (Defendant)
Representation:	Counsel: Mr T Hammond (Plaintiff) Mr T Ower (Defendant) Solicitors: Cardilo Gray Partners (Plaintiff) Mark Bendall Solicitor for the SAS Trustee Corporation (Defendant)
File Number(s):	RJ 00058 of 2021
Publication restriction:	Nil