HIS HONOUR: These proceedings were commenced by a Statement of Claim filed on 9 March 2021, almost three years ago. The relief claimed in the originating process was that a decision of the defendant made on 11 September 2020 be set aside and that the Court determine that the plaintiff was incapable from an infirmity of mind, namely chronic post-traumatic stress disorder with co-morbid depression and anxiety, of discharging the duties of his office, presumably at the time that he resigned from the New South Wales Police on 10 April 1995.
An Amended Statement of Claim was filed on 7 June 2021. That asked that two decisions of the defendant, one made on 30 May 1991, and another made on 31 March 2020, as well as one on 11 September 2020, be set aside, but otherwise the relief sought was the same. On 12 October 21, Hatzistergos DCJ gave judgment on a notice of motion brought by the defendant. His Honour's reasons are published: Boland v SAS Trustee Corporation [2021] NSWDC 545.
The motion that His Honour dealt with was a motion brought by the defendant for dismissal of the proceedings against the defendant's refusal to consider a further application for a superannuation allowance pursuant to s10B(2) of the Police Regulation (Superannuation) Act 1906. His Honour set out the background of the matter and then pointed out that the defendant's notice of motion filed on 20 July 2021, sought a dismissal of the proceedings for an abuse of process and, in the alternative, that the proceedings be dismissed as not being justiciable pursuant to s 21 of the Police Regulation (Superannuation) Act 1906.
Essentially, His Honour thought the matter was arguable, and the question of whether the plaintiff had given, prior to his resignation, notice of the relevant injury was, "debatable," both factually and in terms of the proper construction of s 10(2)(b) of the Police Regulation (Superannuation) Act 1906. His Honour therefore dismissed the notice of motion.
The plaintiff filed a notice of motion on 4 December 2023, seeking that I disqualify myself from the hearing of the substantive proceedings in this matter. I dismissed that application, giving reasons for it on 5 December 2023, see Boland v SAS Trustee Corporation [2023] NSWDC 590.
At that time, the matter had been listed for hearing for five days, commencing last Monday, 4 March 2024. However, because of matters that were before me on that day, I did not reach this matter then, but stood it over until yesterday, 5 March 2024, when the evidence was adduced, and we had reached the stage where submissions ought be made. I indicated a preliminary review to counsel, before me. That preliminary review concerned the relief sought in a Further Amended Statement of Claim which was filed in Court yesterday morning and was signed by the plaintiff's solicitor on 29 February 2024.
That Statement of Claim substantially changed the relief sought. The relief sought in the Further Amended Statement of Claim is this:
"2. The decisions of the defendant dated 31 March 2020 and/or 11 September 2020 are set aside.
3. The decision of the defendant is replaced with a decision that the defendant will consider the plaintiff's application of November 2019."
[2]
Jurisdiction
I expressed the preliminary view to counsel yesterday at the conclusion of the evidence that I do not have the ability or jurisdiction to remit this matter back to the defendant to be determined by it. My jurisdiction arises under s 21 of the Police Regulation (Superannuation) Act 1906, to which I shall refer hereafter as, "the Act." Section 21(4) of the Act is this:
"The District Court, after considering an application under this section, may make a determination that the decision of STC [the current defendant] 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."
My jurisdiction is to set aside a decision of the defendant and replace it with a different decision to be made by me. I do not have jurisdiction to remit the matter back to the defendant to determine the matter in accordance with some ruling or direction that I may make. Essentially, as pointed out by learned counsel for the respondent, and as pleaded in [1] of the Further Amended Defence, which was filed in Court yesterday, after the filing of the Further Amended Statement of Claim, essentially what the plaintiff was asking me to do was to grant an order in the nature of mandamus. I have no jurisdiction to grant that. The only jurisdiction which I have under the Act is that granted by s 21, which does not give me a power of remitter.
Counsel for the plaintiff, this morning seeks an adjournment as he wishes to file a summons in the Supreme Court. He initially told me that he was seeking to have this matter transferred to the Supreme Court, but that is completely, in my view, inappropriate because the Supreme Court does not have jurisdiction under the Act. If the plaintiff wishes to seek mandamus against the defendant, he can do so by commencing proceedings in the Supreme Court, seeking that relief without the necessity of my transferring this matter to the Supreme Court, or indeed asking the Supreme Court to transfer this matter to it. The defendant opposes the adjournment application and asked me to deal with the matter as pleaded, but that would achieve nothing.
Were I to do so, the only outcome, inevitably, would be a confirmation of the defendant's decision because, even if I did not think that appropriate, I could not grant the plaintiff the relief which he seeks, and therefore there would be a dearth of evidence that he may wish to rely upon, for example, some evidence of his giving notice to the defendant prior to his dismissal that he was suffering from post-traumatic stress disorder, or the equivalent thereof, that incapacitated him for work on the date that he last worked, which was in on or about 28 September 1989. That specific date is not proven, but all the evidence points to the plaintiff's last working in late September 1989.
The defendant essentially also asked me to dismiss the matter for want of prosecution. If I were to do so, however, I might jeopardise any entitlement the plaintiff might have because of the time limit of six months contained in s 21(1) of the Act. The defendant has drawn my attention very forcefully to what fell from French CJ in Aon Risk Services Australia v Australia National University [2009] HCA 27; [2009] 239 CLR 174 [5].
I have sympathy with the defendant's position. These proceedings ought to have been disposed of within one year, and now nearly three years have elapsed. There has been a Notice of Motion brought by the defendant seeking to shorten proceedings, but that was unsuccessful, and the plaintiff now seeks to rely upon a Statement of Claim which was only composed by the plaintiff's solicitor on 29 February this year and was filed in Court on 5 March 2024, yesterday, albeit that it was probably designed to be filed in Court on Monday 4 March 2024. Of course, 29 February was last Thursday, six days ago. I agree, in principle, that these proceedings should be brought to a conclusion, but equally, the case which the plaintiff seeks to rely upon is novel, and it should be dealt with on its merits, that is, both its factual and the legal merits, and not because of neglect or delay in deciding what the plaintiff's real case is.
[3]
Decision
I grant the adjournment. Necessarily the matter will be out of the list for some time. The matter is removed from the list, it is stood over into the Inactive List, it can be restored by Notice of Motion, filed by the party who seeks final relief.
[4]
Further Reasons
Mr Ower now asks me to give further reasons for making the decision which I have just announced. The decisions of the defendant, which the plaintiff seeks to set aside are these. On 31 March 2020, Mr Lachlan Doyle, a solicitor employed by the defendant, wrote to the plaintiff's solicitor saying this:
"I refer to the application forms sent by your firm to Mercer, [the defendant's agent] in November 2019, on behalf of your client, the above‑mentioned Mr Boland, purporting to make an application under s 10B(2) of [the Act]...
My client, SAS Trustee Corporation (STC), is bound by the decision of the full bench of the Industrial Relations Commission of NSW in Court session, (IRC) in Berrick Boland v SAS in May 1995, under s 10B(2) of [the Act]. My client is therefore unable to consider your client's purported application under s 10B(2)."
That is, in essence, a statement by the defendant's solicitor, that the defendant believed that it was that the ruling of the IRC created an estoppel which bound the defendant as well as the plaintiff. Therefore it would not consider further the application made by the plaintiff purportedly under s 10B(2) of the Act, which was dated by him on 14 November 2019 and received by the defendant on 21 November 2019. The other alleged decision of the defendant bears the date 11 September 2020, which is a comment upon views expressed by the plaintiff's solicitor in at least a letter of 12 August 2020, maintaining the plaintiff's position as to what his claim was.
In essence, in the letter of 11 September 2020, the senior lawyer for the defendant, Mr Mark Bendall reiterated the advice that had been earlier communicated to the plaintiff's solicitor on 31 March 2020 by Mr Doyle. The decisions which the defendant's letters state are essentially that the plaintiff is estopped by the decision of the Full Bench of the Industrial Relations Commission in Boland v SAS Trustee Corporation [1999] NSWIRcomm 488, upholding a decision of the President of the Commission, Fischer P in Boland v SAS Board [1998] NSWIRComm 155. That certainly is a matter that can and must be debated. However, assuming whatever I decided on that issue, the fact remains, the plaintiff was not asking me to make any decision other than to remit the matter back to the defendant, which is not something I have power to do.
The live issue is whether the estoppel/res judicata pleaded by the defendant in the Further Amended Defence filed in Court on 5 March 2020, is a good defence. However, the fact remains that if the plaintiff were successful in persuading me that there was no estoppel or res judicata, then the proceedings would come to a halt because I could not grant then the relief that the plaintiff claims. And the plaintiff was not claiming that I should grant or make some other finding, which in the circumstances could be seen as perverse. However, if I permit the plaintiff to go to the Supreme Court and seek mandamus, these issues can be debated there, and if the plaintiff is unsuccessful, the defendant can move this Court to dismiss the proceedings and can seek an order for costs, if so advised, against the plaintiff.
[5]
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Decision last updated: 16 September 2024