Boland v SAS Trustee Corporation

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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

  1. These proceedings concern a motion for dismissal of proceedings brought…

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Details
Case
[2021] NSWDC 545
Decision Date

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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