Legal Research
Cases
Day v SAS Trustee Corporation

Day v SAS Trustee Corporation

Link copied

Case Copied 28 April 2021 48 min read

Contents

On this page

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Day v SAS Trustee Corporation [2021] NSWCA 71
Hearing dates: 30 March 2021
Decision date: 28 April 2021
Before: Meagher JA at [1];
Payne JA at [71];
White JA at [72]
Decision:
(1) Dismiss the appeal.
(2) Appellant pay the respondent’s costs.

Catchwords:
ADMINISTRATIVE LAW – constructive failure to exercise jurisdiction – where appellant alleges primary judge failed to address “substantial, clearly articulated” arguments – whether arguments based on “established facts” – whether primary judge’s approach raised those arguments for separate determination
EMPLOYMENT AND INDUSTRIAL LAW – public sector – police – Police Regulation (Superannuation) Act 1906 (NSW), s 10B(2) – where primary judge found appellant incapacitated by transient condition for short period at time of resignation from police force – whether it follows that appellant incapable from infirmity of body or mind of exercising the functions of a police officer at that time – meaning of “infirmity” in Police Regulation (Superannuation) Act

Legislation Cited:
District Court Act 1973 (NSW), ss 142G, 142N
Police Act 1890 (UK), ss 1, 5(1), (2), (4)
Police Regulation Act 1899 (NSW), ss 28-36
Police Regulation (Superannuation) Act 1906 (NSW), ss 2J, 3, 7, 8, 10(1), (1A), 10B(2), (3), 14(1), 16, 21
Police Superannuation Legislation Amendment Act 2007 (NSW)
Superannuation Legislation Amendment Act 2006 (NSW)

Cases Cited:
Adams v State Authority Superannuation Board (unreported, Cullen J, IRC90/551, 5 December 1991)
Browne v Dunn (1893) 6 R 67 (HL)
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088
Goodwin v Commissioner of Police [2012] NSWCA 379
In re Buck; Bruty v Mackey [1896] 2 Ch 727
Liddell Coal Operations Pty Ltd v Hector [2021] NSWCA 47
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R v Birks (1990) 19 NSWLR 677
Re Boothroyd [1986] 1 Qd R 167
SAS Trustee Corp v Miles (2018) 265 CLR 137; [2018] HCA 55
SAS Trustee Corporation v Cox [2011] NSWCA 408; (2011) 285 ALR 623
SAS Trustee Corporation v Daykin [2002] NSWIRComm 124; (2002) 115 IR 72
SAS Trustee Corporation v Rossetti [2018] NSWCA 68
SAS Trustee Corporation v Woollard (2014) 86 NSWLR 367; [2014] NSWCA 75
State Rail Authority of New South Wales v Brown (2006) 66 NSWLR 540; [2006] NSWCA 220
Swift v SAS Trustee Corporation [2010] NSWCA 182
Ta Lee Investments Pty Ltd v Antonios [2019] NSWCA 24
Vines v Australian Securities and Investments Commission (2007) 73 NSWLR 451; [2007] NSWCA 75

Category: Principal judgment
Parties: Roland Day (Appellant)
SAS Trustee Corporation (Respondent)
Representation:
Counsel:
J Morris SC with M Hammond (Appellant)
G Watson SC with S Palaniappan (Respondent)
Solicitors:
Cardillo Gray Partners (Appellant)
In-house (Respondent)

File Number(s): 2020/227181
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court…

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.

Keep reading for free

Create a free CaseChat account to read Day v SAS Trustee Corporation and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NSWCA 71
Decision Date: 28 April 2021

CaseChat Overview and Summary

The appeal concerned the interpretation of section 10B(2) of the *Police Regulation (Superannuation) Act 1906* (NSW) and whether the primary judge had failed to address substantial arguments raised by the appellant. The appellant, a former police officer, alleged that the primary judge had constructively failed to exercise jurisdiction by not separately determining arguments based on established facts. The respondent was the SAS Trustee Corporation.

The court was required to determine two primary legal issues. Firstly, whether the primary judge’s approach to the appellant’s arguments constituted a constructive failure to exercise jurisdiction, particularly concerning arguments based on established facts. Secondly, the court had to consider the meaning of "incapable from infirmity of body or mind of exercising the functions of a police officer" within the context of section 10B(2) of the Act, and whether a finding of temporary incapacity for a short period at the time of resignation necessarily meant the appellant was incapable of exercising police functions due to infirmity at that time.

The court reasoned that the primary judge had adequately addressed the appellant's arguments, finding that they were not of such a substantial or clearly articulated nature as to warrant separate determination. Regarding the second issue, the court held that a transient, short-term incapacity did not equate to being incapable from "infirmity" as contemplated by the Act. The term "infirmity" was interpreted to imply a more persistent or serious condition that would prevent the exercise of police functions.

The appeal was dismissed, and the appellant was ordered to pay the respondent's costs.

Orders

Orders of the court

(1) Dismiss the appeal.

(2) Appellant pay the respondent’s 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:	Day v SAS Trustee Corporation [2021] NSWCA 71
Hearing dates:	30 March 2021
Decision date:	28 April 2021
Before:	Meagher JA at [1]; Payne JA at [71]; White JA at [72]
Decision:	(1) Dismiss the appeal. (2) Appellant pay the respondent’s costs.
Catchwords:	ADMINISTRATIVE LAW – constructive failure to exercise jurisdiction – where appellant alleges primary judge failed to address “substantial, clearly articulated” arguments – whether arguments based on “established facts” – whether primary judge’s approach raised those arguments for separate determination EMPLOYMENT AND INDUSTRIAL LAW – public sector – police – Police Regulation (Superannuation) Act 1906 (NSW), s 10B(2) – where primary judge found appellant incapacitated by transient condition for short period at time of resignation from police force – whether it follows that appellant incapable from infirmity of body or mind of exercising the functions of a police officer at that time – meaning of “infirmity” in Police Regulation (Superannuation) Act
Legislation Cited:	District Court Act 1973 (NSW), ss 142G, 142N Police Act 1890 (UK), ss 1, 5(1), (2), (4) Police Regulation Act 1899 (NSW), ss 28-36 Police Regulation (Superannuation) Act 1906 (NSW), ss 2J, 3, 7, 8, 10(1), (1A), 10B(2), (3), 14(1), 16, 21 Police Superannuation Legislation Amendment Act 2007 (NSW) Superannuation Legislation Amendment Act 2006 (NSW)
Cases Cited:	Adams v State Authority Superannuation Board (unreported, Cullen J, IRC90/551, 5 December 1991) Browne v Dunn (1893) 6 R 67 (HL) Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 Goodwin v Commissioner of Police [2012] NSWCA 379 In re Buck; Bruty v Mackey [1896] 2 Ch 727 Liddell Coal Operations Pty Ltd v Hector [2021] NSWCA 47 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v Birks (1990) 19 NSWLR 677 Re Boothroyd [1986] 1 Qd R 167 SAS Trustee Corp v Miles (2018) 265 CLR 137; [2018] HCA 55 SAS Trustee Corporation v Cox [2011] NSWCA 408; (2011) 285 ALR 623 SAS Trustee Corporation v Daykin [2002] NSWIRComm 124; (2002) 115 IR 72 SAS Trustee Corporation v Rossetti [2018] NSWCA 68 SAS Trustee Corporation v Woollard (2014) 86 NSWLR 367; [2014] NSWCA 75 State Rail Authority of New South Wales v Brown (2006) 66 NSWLR 540; [2006] NSWCA 220 Swift v SAS Trustee Corporation [2010] NSWCA 182 Ta Lee Investments Pty Ltd v Antonios [2019] NSWCA 24 Vines v Australian Securities and Investments Commission (2007) 73 NSWLR 451; [2007] NSWCA 75
Category:	Principal judgment
Parties:	Roland Day (Appellant) SAS Trustee Corporation (Respondent)
Representation:	Counsel: J Morris SC with M Hammond (Appellant) G Watson SC with S Palaniappan (Respondent) Solicitors: Cardillo Gray Partners (Appellant) In-house (Respondent)
File Number(s):	2020/227181
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court…