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
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:
Solicitors:
J Morris SC with M Hammond (Appellant)
G Watson SC with S Palaniappan (Respondent)
Cardillo Gray Partners (Appellant)
In-house (Respondent)
File Number(s): 2020/227181 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- District Court…
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- Case
- [2021] NSWCA 71
- Decision Date
CaseChat Overview and Summary
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
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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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