Boland v SAS Trustee Corporation

Defendant's Application

1. The Defendant has by Notice of Motion filed on 20 July 2021 sought orders as follows: 1. The proceedings be dismissed as an abuse of process pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 (UCPR); 2. Alternatively, the proceedings be dismissed as not justiciable pursuant to s21 of the Police Regulation (Superannuation) Act 1906; and 3. The Plaintiff to pay the Defendant's costs.

Statutory Framework

1. Section 10B(2) of the 1906 Act now reads as follows: (2) An annual superannuation allowance or gratuity must not be granted under section 10 to a former member of the police force who resigned or retired unless-- (a) the former member notified the Commissioner of Police before the member's resignation or retirement and within 6 months of receiving the injury which has caused the member's infirmity of body or mind, of that injury, and (b) if the regulations so require, the notification was in the prescribed form, and (c) STC (having regard to medical advice on the condition and fitness for employment of the member) has certified that the former member was incapable, from that infirmity of body or mind, of personally exercising the functions of a police officer referred to in section 14 (1) of the Police Act 1990 at the time of the member's resignation or retirement.
2. In 1999, the relevant section read: (2) An annual superannuation allowance shall not be granted under section 10 to a former member of the police force who resigned or retired unless: (a) the former member notified the Commissioner of Police before the member's resignation or retirement and within 6 months of receiving the injury which has caused the member's infirmity of body or mind, of that injury, (a1) where the regulations so require, the notification was in or to the effect of the prescribed form, and (b) STC (having regard to medical advice on the condition and fitness for employment of the member) has certified that the former member would have been incapable, from that infirmity of body or mind, of discharging the duties of the member's office at the time of the member's resignation or retirement.
3. The Defendant accepted that there was no relevant difference between these provisions.
4. Section 21 of the 1906 Act relevantly provides: 21 DETERMINATION BY DISTRICT COURT (1) A person who considers himself or herself aggrieved by-- (a) a decision made by STC on a matter that arises under this Act by reason of a member of the police force being hurt on duty, or (b) ……. may, within the period of 6 months after the person is notified of that decision, apply to the District Court for a determination in relation to that decision. (2) Notification of a decision under subsection (1) is to be given in writing. (3) STC or the Commissioner of Police, as the case may be, is entitled to be represented at the hearing of an application under this section. (4) The District Court, after considering an application under this section, may make a determination that the decision of STC or the Commissioner of Police, as the case may be, in respect of which the application was made-- (a) be confirmed, or (b) be set aside and replaced by a different decision made by the District Court. (5) The District Court shall not make a decision referred to in subsection (4) (b) unless STC or the Commissioner of Police, as the case may be, could pursuant to this Act make that decision. (6) - (11) ……

Section 10B(1) of the 1906 Act

1. The Defendant argues so far as the Defendant's s 10B(1) decision of 30 May 1991 is concerned that was subject to a 6 month time limit pursuant to s 21(1) of the 1906 Act which expired many years ago and the Court had no power to extend the limitation period. [23] Accordingly, the Court has no jurisdiction.
2. The Defendant contended that in any event, the Plaintiff is now a former member of the police force and s 10B(1) of the 1906 Act is no longer applicable to his circumstances as he resigned on 10 April 1995.
3. The Plaintiff argued that the decision made on 30 May 1991 was not a valid decision for the purposes of allowing time to run as it did not comply with the requirements in Schinnerl v The Commissioner of Police [1992] NSWCA 224. As I understand the Plaintiff's argument, it was that the Defendant informed the Plaintiff of the incorrect avenue of pursuing his application at the time.

Consideration

1. The content of the Defendant's notification to the Plaintiff as to the decision of 30 May 1991 is not apparent on the material before me. Schinnerl v The Commissioner of Police referred to the Defendant's failure to notify enough detail to enable the filing of a claim. As to the mechanism for filing a claim, this was ultimately a matter for the Plaintiff to determine on the basis of his own advice as the Court of Appeal in SAS Trustee Corporation v Rossetti [2018] NSWCA 68 ultimately came to determine.
2. There was nothing to suggest that an application could not have been brought within the period prescribed by s 21 of the 1906 Act.
3. Regardless, the Plaintiff is no longer a police officer and accordingly unable to now pursue an application pursuant to s 10B(1) of the 1906 Act. So much appears to have been accepted by him when he sought to pursue his rights under s 10B(2) of the 1906 Act. The Plaintiff's Amended Statement of Claim does not identify the basis on which the Plaintiff contends that this Court is able to set aside the decision dated 30 May 1991 and the pleading (as opposed to the relief) does not refer to it. Instead, the pleading only refers to seeking to set aside the decision of 11 September 2020. [24]
4. This matter need be considered no further.

Section 10B(2) of the 1906 Act

1. The next question relates to the Defendant's "decision(s)" under s 10B(2) of the 1906 Act.
2. The Defendant argued that decision of 30 October 1995 was ultimately determined by a Full Bench after a fully contested appeal involving consideration of the "vast array" of medical opinion before Fisher P which included orthopaedic and psychiatric evidence and found that the Plaintiff was not incapable of the duties of his office to which he was assigned as a police officer on 4 October 1990.
3. The Defendant argued that the primary finding disposed of the Plaintiff's rights under s 10B(2) of the 1906 Act and that the majority of the Full Bench in the IRCCS expressly addressed the statutory test for incapability pursuant to s 10B(2) concluding that the Plaintiff was not entitled to be certified.
4. The Defendant further contended whatever may have be the correct medical classification of what the Plaintiff may have been suffering as at the date of his last day of duty or resignation is bound by the fundamental finding of the majority of the Full Bench of the IRCCS that he was not incapable of discharging the duties of his office and accordingly any potential right he had to pursue his claim under s 10B(2) merged in that judgment and it was extinguished as explained by Dixon CJ in Blair v Curran (1939) 62 CLR 464 at 531.
5. Accepting that the Plaintiff's present application was in respect of "decision(s)" arising under the 1906 Act as asserted, the Defendant argued that s 21(5) of the 1906 Act constrains the District Court so that it cannot make a decision setting aside and replacing a different decision under s 21(4)(b) unless the STC or the Commissioner of Police could pursuant to the 1906 Act make that decision. The Defendant argued that on proper construction, the power conferred was exhausted by its first exercise.
6. The Defendant acknowledged that s 10B(1) applies to currently serving members of the police force and s 10B(2) applies to former members who have resigned or retired. It accepted that during an officer's service, circumstances may change so an unsuccessful application pursuant to s 10B(1) would not disentitle a claimant to future benefits while a member of the police. In contrast, s 10B(2) was said to apply in circumstances where the test for incapability is applied to a specific point in the past such that either a former member was or was not incapable at that time. The Defendant argued that it would be a strained statutory construction which would require the Defendant to revisit its original decision at the Plaintiff's behest when the underlying circumstances cannot change and it would be antithetical to the strict time limit imposed by s 21(1) of the 1906 Act as per Richardson v SAS Trustee Corporation (1999) 18 NSWCCR 423 at [16] to [18].
7. Alternatively, the Defendant argued that the Plaintiff was estopped from re-agitating the issue of incapability as the previous finding rejecting incapability was a state of fact and/or law which was fundamental and had been determined by a superior court of record. Whether the claim, in retrospect, should have been prosecuted differently or should now be construed in light of advances in medical science is irrelevant and he did not have a right to raise the issue previously determined after a contested hearing and appeal.
8. What the Plaintiff described as decisions dated 31 March 2020 and 11 September 2020 were asserted by the Defendant as properly construed to be expressions of opinions in correspondence as distinct from decisions within the meaning of s 21(1) of the 1906 Act.
9. The Defendant argued that its correspondence of 31 March 2020 pointed out that parties were bound by the Plaintiff's previous litigation and that accordingly the Defendant was unable to consider the Plaintiff's further application. The Defendant's further correspondence of 11 September 2020 reiterated the view that there was no power to make a decision on the Plaintiff's further s 10B(2) application as his rights were finally determined by the Full Bench in 1999.
10. Despite the contents of his solicitor's earlier correspondence, the Plaintiff argued that the IRCCS never had jurisdiction to deal with the matter and the matter has not been determined by a competent Court. The Plaintiff contended that the effect of the Court of Appeal decision in SAS Trustee Corporation v Rossetti was to render the earlier proceedings as a nullity. The further application under s 10B(2) of the 1906 Act raised a different condition to the earlier condition such that the Plaintiff's case was arguable. Moreover, the proceedings now rested on the admission of additional evidence beyond that which was presented before the IRCCS such that it was entitled to have that evidence considered and the Defendant's failure to do so constituted a decision.
11. It is accepted that this Court pursuant to s 21(4)(b) of the 1906 Act cannot make a decision setting aside and replacing a different decision unless the Defendant or the Commissioner of Police could make that decision.
12. On 6 October 2021, I sought submissions as to how it was contended that the Plaintiff had complied with s 10B(2)(a) of the 1906 Act by notifying "the Commissioner of Police before [his] resignation or retirement and within 6 months of receiving the injury which has caused [his] infirmity of body and mind, of that injury." The Amended Statement of Claim did not plead whether and if so when the notification was given. The document titled "Defence" indicates in paragraph [9(a)] that notification was not given.
13. In his Application Form, the Plaintiff identified that he became incapable of exercising the functions of a police officer in 1990. [25] Section B indicates that the Plaintiff notified the Commissioner of Police through various medical reports.
14. In his additional submissions, the Plaintiff submitted that these included materials that were lodged with the Defendant preceding his retirement referring to symptoms and what he perceived were the cause of the symptoms. To the suggestion that the notice was not given in the prescribed form, attention was drawn to the Plaintiff's report of 2 June 1990 and the report of Dr Orr dated 14 June 1990 after an initial consultation on 12 March 1990. The Plaintiff submitted that on the face of the evidence, he notified symptoms and what he believed were the cause of them and the Commissioner of Police through his appointed Police Medical Officers, third party psychiatrist and officers then had the opportunity to investigate (and did investigate) whether the injury notified was hurt on duty.
15. The Plaintiff argued that he did notify what he saw to be the underlying cause of the symptoms and claimed that those symptoms were causative of the infirmity of Post-Traumatic Stress Disorder where that diagnosis was not made at the time despite records of the symptoms and events that were causative of them.
16. The Defendant argued that the contemporaneous medical reports referred to symptoms and do not constitute statutory notice of a psychological injury that would satisfy s10B(2)(a) for the reasons given by Bathurst CJ in SAS Trustee Corporation v Wollard (2014) 86 NSWLR 367 in particular at [64]-[70].
17. The Defendant accepted that the statutory notice point was not taken in the course of the previous litigation in the IRCCS where the same "various medical reports" were considered. It contended that if it was necessary for it to address the issue it is unlikely that the Plaintiff would be able to satisfy the Wollard test in any event on the evidence propounded in Exhibit 1 and this would be a further reason why the application could not proceed.

Consideration

1. The Plaintiff's argument that in light of the decision of the Court of Appeal in SAS Trustee Corporation v Rossetti, the earlier proceedings of the IRCCS were a nullity is on its face inconsistent with well-established authority that a decision of a superior Court even in excess of jurisdiction is at worst voidable but otherwise valid until set aside. [26] Any distinction arising from the fact that the Full Bench of the IRCCS previously purported to exercise jurisdiction under s 88 of 1996 Act (as it then stood) as opposed to s 21 of the 1906 Act was not explored in argument.
2. However, the Plaintiff's argument that the proceedings cannot amount to an abuse of process as his application is advanced on a different basis to the previous application raises the issue of whether it is open to bring these proceedings. [27]
3. Both parties accepted that the capacity to bring further proceedings depended on the interpretation of s 10B(2) of the 1906 Act which requires certification that the former member was incapable, from that infirmity of body or mind, of personally exercising the functions of a police officer at the time of the member's resignation or retirement. During argument, I enquired as to the existence of any authority as to the capacity of the Defendant to consider a further application with reference to s 10B(2)(b) of the 1906 Act. Both parties conceded that there was none although the Defendant drew attention to the statutory framework which it contended was inconsistent with that ability and the concepts of issue estoppel and res judicata apply.
4. Section 48 of the Interpretation Act 1987 (NSW) (the 1987 Act) displaces the common law rule that a power conferred by statute was exhausted by its first exercise. [28] The section provides: 48 EXERCISE OF STATUTORY FUNCTIONS (1) If an Act or instrument confers or imposes a function on any person or body, the function may be exercised (or, in the case of a duty, shall be performed) from time to time as occasion requires. (2) If an Act or instrument confers or imposes a function on a particular officer or the holder of a particular office, the function may be exercised (or, in the case of a duty, shall be performed) by the person for the time being occupying or acting in the office concerned.
5. That section is to be read in conjunction with s 3 of the 1987 Act which reads: 3 DEFINITIONS (1) In this Act-- "instrument" means an instrument (including a statutory rule or an environmental planning instrument) made under an Act, and includes an instrument made under any such instrument. (2) In this Act-- (a) a reference to a function includes a reference to a power, authority and duty, and (b) a reference to the exercise of a function includes, in relation to a duty, a reference to the performance of the duty.
6. Pursuant to s 5(2) of the 1987 Act, that Act applies to an Act or instrument except in so far as the contrary intention appears in the 1987 Act or "in the Act or instrument concerned."
7. The question remains whether these provisions permit the Plaintiff's further application to be considered in light of s 10B(2)(b) of the 1906 Act and further whether any "decision" grounds a basis for the exercise of this Court's jurisdiction under s 21 of the 1906 Act. That jurisdiction is expressed not as one of appeal but rather as one to make a determination in relation to the decision and to either confirm or set aside and replace the decision. [29]
8. UCPR 13.4 provides in sub r (1): "If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings - (a)…. (b)…. (c) the proceedings are an abuse of process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim."
9. The relevant principles pursuant to which an application under the rule are to be considered were summarised by Gleeson JA in Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405 (Beasley P and Barrett JA agreeing) as follows: 196. It is not in dispute that "great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his cause by the appointed tribunal": General Steel Industries Inc v Commissioner for Railways (NSW) (General Steel) [1964] HCA 69; 112 CLR 125 at 130 (Barwick CJ). 197. More recently in Agar v Hyde [2000] HCA 41; 201 CLR 552, Gaudron, McHugh, Gummow and Hayne JJ said at [57]: "Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way." 198. Subsequent authorities have reaffirmed that formulation: see Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256 at [46]; Spencer v Commonwealth at [24]. 199. In Shaw v New South Wales [2012] NSWCA 102, Barrett JA (with whom Beazley, McColl, Macfarlan JJA, and McClellan CJ at CL agreed) expressed the test for summary dismissal as follows at [32]: "The question is...whether the claims in question are so obviously untenable or groundless that there is 'a high degree of certainty' that they will fail if allowed to go to trial; and whether this is one of the 'clearest of cases' in which the court may accordingly intervene to prevent the claims being litigated." 200. Further, that assessment is to be made taking the plaintiff's case at its highest. The party applying for summary dismissal must accept the truth of all allegations in the statement of claim, and the ranges of meaning which the assertions of fact in the statement of claim are capable of bearing: Penthouse Publications Ltd v McWilliam (Court of Appeal (NSW), Priestley and Meagher JJA and Wardell AJA, 15 March 1991, unrep); Agius v New South Wales [2001] NSWCA 371 at [24]. 201. No argument was raised on this appeal as to whether this test requires refinement in light of provisions of the Civil Procedure Act. That is, whether the statutory directives about case management and the "overriding purpose" of the rules might warrant courts striking out proceedings on "less substantial grounds" than those stated in General Steel: see Commonwealth of Australia v Griffiths [2007] NSWCA 370; 70 NSWLR 268 at [155] (Young CJ in Eq); Bott v Carter [2012] NSWCA 89 at [13]- [14] (Basten JA); Shaw v New South Wales at [33] and [128]-[134] (Barrett JA).
10. The relevant principles were also summarised (albeit in the context of an application to strike out a defence) by Emmett AJA (with whom Macfarlan and Simpson JJA agreed) in State of New South Wales v Williams (2014) 242 A Crim R 22; [2014] NSWCA 177 at [71], as follows: "The requirement for establishing that there is no triable issue is a demanding one and the power to strike out a pleading on the basis that it discloses no reasonable defence, or is an abuse of process, should be exercised only in plain and obvious cases. The power should not be exercised in cases of doubt or difficulty or where the pleading raises a debatable question of law. Once it appears that there is a real issue, whether of fact or law, and that the rights of the parties depend upon it, a court should not dismiss a defence raising such an issue, either on the basis that no reasonable defence is disclosed or as an abuse of process (see Dey v Victorian Railways Commissioners [1949] HCA 1; 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [19 64] HCA 69; 11 2 CLR 125 at 129-130; Commonwealth v Griffiths [2007] NSWCA 370; 70 NSWLR 268 at [1 1]- [ 12] and Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at 139-140)."
11. Emmett AJA's comments were adopted in the context of UCPR 13.4 in Collier v State of New South Wales (No 2) [2014] NSWSC 1359 by Campbell J.
12. In Spencer v The Commonwealth of Australia (supra) at [25] French CJ and Gummow J stated in relation to an analogous rule : …Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.
13. There is nothing specific in the 1906 Act which displaces the 1987 Act [30] such that the question of the application of s 48 of the 1987 Act remains arguable. Whatever force there may be in the Defendant's construction or other arguments, there is an absence of binding authority and the circumstances have not been fully explored. Matters of fact and law remain debateable. In particular whether or not the Defendant's correspondence amount to decision(s) within the broad terms of s 21(1)(a) and the time limit in s 21(1)(b) of the 1906 Act should not be determined on an application of this nature. The question of notice is also debateable both factually and in terms of the construction of s 10(2)(b) of the 1906 Act notwithstanding the decision in Wollard. The Defendant concedes as much in supplementary submissions submitting that it is "unlikely" the Plaintiff will be able to satisfy the test propounded.
14. In my view the matter lacks the high degree of certainly such that it is not an appropriate case for summary disposition and abuse of process has not been demonstrated.
15. For these reasons, I order as follows: 1. The Defendant's Notice of Motion is dismissed. 2. I will hear from the parties as to costs.

Endnotes

1. Exhibit A, p 1-17 and Amended Statement of Claim at [11].
2. Exhibit A , p1-4.
3. Exhibit A, p18.
4. Exhibit A, p20.
5. Berrick Boland v SAS Trustee Corporation [1999] NSWIRComm 488 at 318 (Marks and Schmidt JJ).
6. Exhibit A, p22-37.
7. Exhibit A, p38-39.
8. Exhibit A, p40.
9. Exhibit A, p40.
10. Exhibit A, p41.
11. Exhibit A, p47.
12. Berrick Boland v SAS Trustee Corporation [1999] NSWIRComm 488 at 318 (Marks and Schmidt JJ).
13. Amended Statement of Claim at [23] and Exhibit 1 - Affidavit of Stuart Gray affirmed on 16 September 2021.
14. Exhibit 1 - Affidavit of Stuart Gray affirmed on 16 September 2021, Annexure A.
15. Exhibit A, p60.
16. Exhibit A, p61.
17. Exhibit A, p62-67.
18. Exhibit A, p66.
19. Exhibit A, p68.
20. Amended Statement of Claim at [22].
21. Amended Statement of Claim at [26] and [29].
22. Amended Statement of Claim "Relief claimed at 1-3".
23. Jennings v Commissioner of Police (1996) 13 NSWCCR 640.
24. Amended Statement of Claim at [29].
25. Exhibit 1 Affidavit of Stuart Gray affirmed on 16 September 2021, Annexure A.
26. Macks, Re; Ex parte Saint (2000) 204 CLR 158; (2000) 176 ALR 545; (2000) 75 ALJR 203; [2000] HCA 62 endorsing the decision in Cameron v Cole (1944) 68 CLR 571; Residual Assco Group v Spalvins (2000) 202 CLR 629; ; (2000) 172 ALR 366; (2000) 74 ALJR 1013; [2000] HCA 33; DMW v CGW (1982) 151 CLR 491; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
27. For discussion as to the interaction between estoppel and abuse of process, see Tomlinson v Ramsay Food Processing Pty Ltd (2015) 256 CLR 507 per French CJ, Bell, Gaegler and Keane JJ at [25]-[27].
28. See Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193.
29. See Sleiman v Gadalla Pty Ltd [2021] NSWCA 236 at [68].
30. Whilst not part of the 1906 Act, a note in section 1 refers to the Interpretation Act 1987 containing definitions and other provisions that affect the interpretation and application of this Act.

Amendments 15 October 2021 - Reasons as published incorporate typographical amendments made with the consent of the parties DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 October 2021