Boland v SAS Trustee Corporation

Medium Neutral Citation: Boland v SAS Trustee Corporation [2026] NSWSC 232

Hearing dates: 4 March 2026

Date of orders: 19 March 2026

Decision date: 19 March 2026

Jurisdiction: Common Law

Before: Price AJA

Decision: (1) The summons is dismissed.
(2) The plaintiff is to pay the defendant’s costs.

Catchwords: ADMINISTRATIVE LAW – judicial review – where plaintiff a former police officer of the NSW Police Force – where plaintiff made an application in 1995 under s 10B(2) of the Police Regulation (Superannuation) Act 1906 (NSW) for certification as being incapable from a specified infirmity of discharging his duties – where plaintiff found not to be incapable of discharging his duties – plaintiff’s application refused – where decision to refuse plaintiff’s application upheld on appeal to the Industrial Relations Commission of New South Wales – where plaintiff made a second application in 2019 under s 10B(2) – whether defendant does not have the power to consider the plaintiff’s further application – whether defendant functus officio
STATUTORY INTERPRETATION – construction of s 10B(2) of the Police Regulation (Superannuation) Act 1906 (NSW) – precedent – whether bound to follow the Court of Appeal’s decision in Wilson v SAS Trustee Corporation [2024] NSWCA 53 – whether construction of s 10B(1) applies with equal force to s 10B(2) – whether entitlement to annual superannuation allowance is determined once and for all

Legislation Cited: Compensation Court Repeal Act 2002 (NSW)
Interpretation Act 1987 (NSW), s 48
Police Regulation (Superannuation) Act 1906 (NSW), ss 1, 1A, 2H, 2J, 3, 10, 10B, 10B(1), 10B(2), 21, Pts 1, 4
Police Regulation (Superannuation) Amendment Act 1987 (NSW)
Superannuation Administration Act 1996 (NSW), ss 48, 50, 51, 57
Supreme Court Act 1970 (NSW), s 69
Trustee Act 1925 (NSW)

Cases Cited: Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15
Berrick Boland v SAS Trustee Corporation [1999] NSWIRComm 488; (1999) 97 IR 127
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76
Hill v Zuda Pty Ltd (2022) 275 CLR 24; [2022] HCA 21
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11
Pascoe v SAS Trustee Corporation [2022] NSWCA 244
Pascoe v SAS Trustee Corporation [2023] HCASL 69
Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55
SAS Trustee Corporation v Rossetti [2018] NSWCA 68
SAS Trustee Corporation v Woollard (2014) 86 NSWLR 367; [2014] NSWCA 75
SAS Trustee v Learmont [2023] NSWCA 272
Spicer Thoroughbreds Pty Ltd v Stewart [2023] NSWCA 82
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34
Tonkin v Western Mining Corporation Limited [1998] WASCA 101; (1998) 10 ANZ Ins Cas 61-397
Wilson v SAS Trustee Corporation [2024] HCASL 199
Wilson v SAS Trustee Corporation [2024] NSWCA 53

Category: Principal judgment

Parties: Berrick Boland (Plaintiff)
SAS Trustee Corporation (Defendant)

Representation: Counsel:
JM Morris SC / E O’Neill (Plaintiff)
T Ower (Defendant)
Solicitors:
Cardillo Gray Partners (Plaintiff)
SAS Trustee Corporation (Defendant)

File Number(s): 2025/204673

Publication restriction: Nil

JUDGMENT

1. PRICE AJA: By summons filed on 28 May 2025, the plaintiff, Berrick Boland, challenges by way of judicial review under s 69 of the Supreme Court Act 1970 (NSW) the position taken by the defendant, the SAS Trustee Corporation (“the STC”), that it does not have the power to consider the plaintiff’s further application under s 10B(2) of the Police Regulation (Superannuation) Act 1906 (NSW) (“the Police Regulation Act”). The plaintiff seeks the following orders:

“1 An order in the nature of mandamus pursuant to s.69 of [the Supreme Court Act] requiring the [d]efendant to decide or otherwise determine the [p]laintiff’s application for an annual superannuation allowance under [the Police Regulation Act] made on 19 November 2019.

2 Defendant to pay the [p]laintiff’s costs as agreed or assessed.”

2. At the outset of the hearing the plaintiff’s senior counsel, Mr Morris SC, said that the plaintiff no longer pressed the amended summons filed on 25 February 2026 and confirmed it sought to proceed on the summons originally filed: Tcpt, 4 March 2026, p 1(22-27).

3. The plaintiff is a former police officer of the New South Wales Police Force. He was attested as a police officer in 1984 and resigned from the Police Force on 10 April 1995. The STC is a statutory corporation established by s 48 of the Superannuation Administration Act 1996 (NSW) (“the Administration Act”), that controls and administers the Police Superannuation Scheme (“the PSS”) in accordance with the Police Regulation Act. The Police Superannuation Advisory Committee (“the PSAC”) constituted under s 2H of the Police Regulation Act, was acting as the delegated authority of the STC with respect to the PSS pursuant to s 2J of the Police Regulation Act. The PSAC’s function in 1995 included making a decision with respect to certifying if the plaintiff was incapable from a specified infirmity of discharging the duties of his office pursuant to ss 10B(2) of the Police Regulation Act.

4. The Police Regulation Act was amended in 1987 by the Police Regulation (Superannuation) Amendment Act 1987 (NSW), such that the Police Superannuation Fund (established by s 3 of the Police Regulation Act) only applies to police officers who became members of the police force before 1 April 1988 under s 1A of the Police Regulation Act. As the plaintiff was a member of the police force prior to 1 April 1988, he falls within this definition. The applicable version of the Police Regulation Act is that which was in force at the time of the plaintiff’s resignation in April 1995 when his claimed entitlement arose: SAS Trustee v Learmont [2023] NSWCA 272 at [84]-[99] (Basten AJA, Rothman J agreeing) (“Learmont”).

5. Section 10(1) of the Police Regulation Act provides for superannuation benefits for police officers who resigned or retired or are discharged on medical grounds. The superannuation allowance is to be paid where a police officer is “hurt on duty”. That is defined under Pt 1, s 1(2) of the Police Regulation Act to mean “injured in such circumstances as would, if the member were a worker within the meaning of the Workers Compensation Act 1987 [(NSW)], entitle the member to compensation under that Act”.

6. Section 10 falls within Pt 4 of the Police Regulation Act. Section 10B provides that the grant of an annual superannuation allowance must be refused, unless the STC certifies that the member of the police force who has resigned or retired or is discharged on medical grounds, was rendered incapable from a specified infirmity of body or mind, of discharging the duties of the member’s office. The draws a distinction between a serving member of the police force who is discharged from duties (s 10B(1)) and former members who resigned or retired (s 10B(2)). Section 10B in 1995 was relevantly in the following terms:

“10B Medical examination of disabled member and determination of whether hurt on duty

(1) An annual superannuation allowance shall not be granted under section 10 to a member of the police force who is discharged unless STC (having regard to medical advice on the condition and fitness for employment of the member) has certified the member to be incapable, from a specified infirmity of body or mind, of discharging the duties of the member’s office.

(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 his 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.

…”

7. The word “injury” in s 10B(2)(a) of the Police Regulation Act has been construed to include both a physical injury and a disease of gradual onset: SAS Trustee Corporation v Woollard (2014) 86 NSWLR 367; [2014] NSWCA 75 at [67] (Bathurst CJ, Tobias AJA agreeing) (“Woollard”). Therefore, a psychiatric disorder such as post-traumatic stress disorder (“PTSD”) is capable of constituting an “injury” for the purposes of s 10B(2)(a).

8. The right of appeal of an STC decision is now to the District Court (whereas previously to the Compensation Court until it was abolished by the Compensation Court Repeal Act 2002 (NSW)), and is provided for under s 21(1) of the Police Regulation Act which in 1995 was as follows:

“21 Determination by Compensation 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) a decision made by the Commissioner of Police under section 10B (3) (a), 12C (1), 12C (2) or 12D (4) (a),

may, within the period of 6 months after the person is notified of that decision, apply to the Compensation Court for a determination in relation to that decision.”

9. Before the Court of Appeal’s decision in SAS Trustee Corporation v Rossetti [2018] NSWCA 68 (McColl, Basten and Payne JJA) (“Rossetti”), it was understood that in relation to claims for a superannuation allowance under Pt 4 of the Police Regulation Act, an appeal lay to the Industrial Relations Commission of New South Wales (“the IRC”). In Rossetti, the Court of Appeal determined that there was no appeal to the IRC rather the appeal was to be heard and determined by the Compensation Court under s 21 of the Police Regulation Act. A similar analysis of the legislative history of s 21 was noted in Woollard at [16] (Bathurst CJ, Tobias AJA agreeing), [103]-[104] (Basten JA). Neither party has submitted that the decision in Rossetti raises an issue in this case.

10. It is not necessary to provide a detailed summary of the background to the proceedings as the parties have agreed to the facts and issues to be decided, which are set out below.

Agreed facts

11. The agreed facts are as follows:

“1. The plaintiff was attested as a police officer in NSW Police Force on 7 December 1984 and became a member of [the PSS], a scheme governed by [the Police Regulation Act].

2. Relevantly, the defendant is empowered under [the Police Regulation Act] to determine the rights of members and former members to benefits under the PSS.

3. On 2 June 1990 the plaintiff applied for a certificate for the infirmities of “stress and tension and permanent damage to the cervical spine” pursuant to s.10B (1) of [the Police Regulation Act].

4. On 30 May 1991 the defendant delegate, [the PSAC] rejected the application.

5. On 5 May 1993 the defendant’s disputes committee affirmed PSAC’s decision.

6. On 10 April 1995 the plaintiff resigned from the NSW Police Force.

7. On 25 May 1995 the plaintiff applied for a certificate of infirmity pursuant to s.10B (2) of [the Police Regulation Act]. His application included and supplies medical reports from psychiatrists, Dr. Strum and Dr. Westmore.

8. PSAC refused the plaintiff’s s.10B (2) application on 30 October 1995.

9. On 8 February 1996 the defendant’s disputes committee affirmed PSAC’s decision.

10. The plaintiff appealed that decision to [the IRC].

11. On 30 March 1998 the IRC (Fisher P) dismissed the plaintiff’s appeal.

12. The plaintiff appealed to the Full Bench of the IRC.

13. On 2 November 1999 the majority of the Full Bench of the IRC (Schmidt and Marks JJ) dismissed the plaintiff’s appeal.

14. On 21 November 2019 the plaintiff lodged a further s.10B (2) application.

15. The defendant disputed the plaintiff’s right to right to have the plaintiff’s further claim determined.

16. On 9 March 2021 the plaintiff issued proceedings in the District Court pursuant to s.21 of [the Police Regulation Act]. At the hearing before Neilson DCJ on 6 March 2024 the matter was adjourned pending the plaintiff seeking an order in the nature of mandamus from the Supreme Court.

17. On 11 June 2025 the plaintiff filed his summons in the Supreme Court.”

Agreed issues

12. The agreed issues are as follows:

“1. Whether the defendant has power to determine the plaintiff’s further claim [being the application of 21 November 2019] or is the defendant functus officio with regards to that claim?

2. Whether the defendant has a duty to determine the plaintiff’s aforementioned claim?

In the event that the defendant does have power to determine the plaintiff’s further claim and a duty to determine it, then as to relief:

3. Is the relief claimed by the plaintiff futile at law due to the principles of res judicata, issue estoppel and/or finality of litigation?

4. Assuming mandamus is available, should it be refused on a discretionary basis given the plaintiff’s delay in bringing his application and filing his summons?

Plaintiff’s issue

5. Does the Court have jurisdiction to make the orders sought by the plaintiff? That is, is the refusal to determine the plaintiff claim a determination to refuse the plaintiff’s claim of 21 November 2019?”

Some additional facts

13. In order to enable an understanding of the argument between the parties, it is convenient to set out in more detail the judgment of the majority of the Full Bench of the IRC in Berrick Boland v SAS Trustee Corporation [1999] NSWIRComm 488; (1999) 97 IR 127 (Marks and Schmidt JJ, Hungerford J in dissent) (“Berrick Boland”) delivered on 2 November 1999, and the correspondence between the solicitors for the plaintiff and the defendant in 2019 and 2020.

The judgment of the majority of the Full Bench of the IRC

14. In Berrick Boland, the majority of the Full Bench, Marks and Schmidt JJ, dismissed an appeal by the plaintiff from the judgment of Fisher P. In conducting a review of the evidence in the proceedings below, their Honours referred to the “vast array” of medical evidence which included the reports of Dr Orr, a consultant psychologist, the medico-legal report of Dr Westmore, a psychiatrist, and Dr Strum, a consultant psychiatrist, and summarised the effect of all of the medical evidence at 154. Their Honours at 156-157, referred to the factual findings made by Fisher P which included the following:

“1. On the 24th of February 1988 [the plaintiff] received a physical injury to his neck region which caused him disability. He had also developed an adverse reaction to the stress being occasioned to him.

2. The level of disability so encountered was modest and would not ordinarily disable him from earning a living.

…

4. There was no reason arising out of injury or disability to prevent [the plaintiff] from working at selected duties within the Police Service.

5. At the time of the offer of retraining and sedentary duties at Maroubra Police Station, [the plaintiff] was fit for those duties subject to his acceptance of retraining, and he was at all times thereafter, including the time of his resignation similarly so fit.

6. The evidence, which is not seriously contradicted, shows that [the plaintiff] has for a number of years worked in an entrepreneurial role, achieved an annual remuneration level of up to $124,000 and acquired cars, homes and units consistent with the attainment of significant prosperity, thereby demonstrating the physical and mental ability to provide himself with gainful employment.

7. The picture of his activities during the years 1989 to 1995 is inconsistent with [the plaintiff’s] general representation that he could not have coped with selected police duties.

…

10. My finding is that while there was medical evidence supporting the claims of [the plaintiff], there was other and acceptable evidence to the contrary. It is impossible to consider the account of his commercial activities and the record of the results of those activities without concluding that [the plaintiff’s] capacity for work was shown to be far more extensive than he was prepared to concede and that there was a significant area of reduced physical work that he could have adequately discharged, had he been motivated to perform it, in the Police Service.”

15. Marks and Schmidt JJ then went on to say that having made those findings, Fisher P dismissed the plaintiff’s appeal. In finding that Fisher P was correct in dismissing the plaintiff’s appeal, their Honours said at 163-164:

“We agree with the conclusions reach by his Honour, albeit not expressed specifically in terms of the statutory scheme which applies to these proceedings, that the preponderance of the evidence is that [the plaintiff] would not have been incapable of discharging the duties to which he was assigned at the Maroubra Police Station by Inspector Waites and with respect to which he was required to report for work on 4 October 1990.

On this basis we agree with his Honour’s conclusion, like that reached by the STC, that on the evidence [the plaintiff] could not be certified as having been incapable of discharging the duties of his office as referred to in the first limb of s 10B(2B) of [the Police Regulation Act]. Once a conclusion has been reached that it is impermissible to certify as required by the subsection in connection with the first limb of s 10B(2B), the question of certification with respect to the second limb does not arise, it being cumulative, not an alternative requirement.

Accordingly it follows that Fisher P was correct in dismissing the appeal before him. It follows therefore that the appeal from his Honour’s decision should likewise be dismissed.”

The correspondence between the parties’ solicitors

16. Following the plaintiff’s lodgement of the further application made under s 10B(2) of the Police Regulation Act, the STC in a letter dated 19 December 2019 relevantly stated:

“As noted above, [the plaintiff] was previously declined certificates of incapacity for the medical conditions of ‘Stress’ and ‘Tension’; accordingly, as the stated medical conditions have been determined previously by PSAC as not incapacitating [the plaintiff] of discharging the duties of his office at the date of his resignation, PSAC are now functus officio, and no longer have the power to exercise a decision in relation to the said medical conditions.” (emphasis in original)

17. It was the plaintiff’s case, in a letter dated 12 August 2020 from his solicitors to the STC in relation to his claim, that he was now making a claim “on the basis that he was incapacitated for his duties as a consequence of a psychological injury that has caused a specified infirmity of mind”. The plaintiff’s claim was that he was incapacitated for his duties as a consequence of an infirmity of mind not previously claimed by him which was neither considered by the STC nor the IRC. The letter sent to the defendant by the plaintiff’s solicitors was provided in response to earlier correspondence from the defendant which included a letter dated 31 March 2020 from a lawyer on behalf of the defendant which stated the following:

“My client, [the defendant], is bound by the decision of the Full Bench of [the IRC] in [Berrick Boland], which concerned your client’s application made in May 1995 under s.10B(2) of [the Police Regulation Act]. My client is therefore unable to consider your client’s recent purported application under s.10B(2) of [the Police Regulation Act].”

18. Further correspondence then ensued between the parties which led to a letter dated 11 September 2020 from the defendant’s senior lawyer, Mark Bendall, to the plaintiff’s solicitors which included the following:

“My client, [the defendant], notes your views as expressed in your letter. However, your client’s application under s.10B(2) of [the Police Regulation Act], which was made in May 1995, was finally determined by the Full Bench of [the IRC] in [Berrick Boland]. My client has no power to consider your client’s recent purported application under s.10B(2) of [the Police Regulation Act]. I can take this matter no further for you.”

19. The medical reports that appear to have been detailed in a schedule to the plaintiff’s 10B(2) application dated 14 November 2019 were not included in an affidavit of the plaintiff’s solicitor, Harrison Foulcher, affirmed on 28 May 2025. The reports of Drs Orr, Westmore and Strum were annexed but those reports were dated respectively 14 June 1990, 20 April 1994 and 18 May 1994.

Competing arguments of the parties

A summary of the plaintiff’s submissions

20. In oral submissions, Mr Morris SC, succinctly identified the key issue in this case as being the following (Tcpt, 4 March 2026, p 4(1-6)):

“… [W]hether in a statutory contributory superannuation scheme established by this legislation, does the trustee have power to assess and determine a second application for pension entitlements under s 10B(2) [of the Police Regulation Act]. If the answer is yes, it does have the power, this matter should be remitted to the STC for determination.”

21. Mr Morris referred to the present application being focused on the STC’s view that there was no power at all to consider the plaintiff’s further application, that there was “one bite of the cherry”: Tcpt, 4 March 2026, p 6(38-40). Mr Morris submitted that the issue is to be determined by looking at the nature of the scheme, legislation and the trust. Mr Morris contended that there was nothing in the legislation which constrained the trustee from considering a second application. Furthermore, there was nothing in the legislation directing a police officer who had been injured that they only had one entitlement to make an application; that it is a “once and for all application”, that it could not be reconsidered if there was a change in the medical understanding of the plaintiff’s condition: Tcpt, 4 March 2026, pp 6(47)-7(5).

22. Mr Morris observed that the STC is a statutory corporation appointed under the Police Regulation Act and is a trustee for the purpose of the Trustee Act 1925 (NSW). Mr Morris said that the principal functions are to be found in s 50 of the Administration Act and noted that s 50(1)(d) ensures that benefits payable under the STC schemes are paid in accordance with the Acts and s 50(1)(e) of the Administration Act provides for the determination of disputes under those Acts. Mr Morris argued that those are two important features. The obligation to ensure that the people who fulfil the statutory requirement receive their benefits does not speak of a once and for all scheme and the obligation to determine under s 50(1)(e) of the Administration Act, disputes is not determined “by saying, we can’t do it, because here is the statutory direction”: Tcpt, 4 March 2026, p 10(30-32). The dispute is determined by considering all of the material submitted.

23. Further reference was made by Mr Morris to s 51(1) of the Administration Act, in particular to s 57(1)(c) of the Administration Act, and to s 21 of the Police Regulation Act which presupposes that a decision had been made by the STC.

24. Mr Morris submitted there was “an unqualified statutory obligation upon STC to consider an application that has been filed and make a determination”: Tcpt, 4 March 2026, p 13(14-15).

25. In written submissions, the plaintiff contended that the assertions by the defendant that it did not have the power to consider the application were contrary to the observations of the Court of Appeal in Pascoe v SAS Trustee Corporation [2022] NSWCA 244 (“Pascoe”) at [52]-[55] and the defendant’s role as a trustee. When explaining the defendant’s role as a trustee, the plaintiff’s citations included Tonkin v Western Mining Corporation Limited [1998] WASCA 101; (1998) 10 ANZ Ins Cas 61-397 at 74-270 and Learmont at [96].

A summary of the defendant’s submissions

27. In oral submissions, the defendant’s counsel, Mr Ower, referred to Wilson and submitted that there was no principal reason why the Court of Appeal’s approach as to how s 10B(1) of the Police Regulation Act is to be construed should not equally apply to s 10B(2). Mr Ower submitted that the authority of Wilson forcefully supported the defendant’s case that there was no power to consider the plaintiff’s further application and the summons should be dismissed.

28. In written submissions, the defendant referred to a general rule that a power conferred by statute is exhausted by its first exercise. The defendant cited Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211 and submitted Gummow J described the principle as inconvenient but which could give way to an interpretation of a statute conferring power that was exercisable from time to time. The defendant referred to s 48 of the Interpretation Act 1987 (NSW) as providing for such an interpretation except where a contrary intention appears. The defendant submitted that on a proper construction of s 10B(2) of the Police Regulation Act the power exercised by the defendant does evince a contrary intention; it is not a power exercisable from time to time.

29. The defendant referred to the difference between certification under ss 10B(1) and (2) of the Police Regulation Act. The defendant pointed out that s 10B(1) applies to currently serving members of the police force and during an officer’s service circumstances may change so that an unsuccessful application pursuant to s 10B(1) does not disentitle a claimant to the future benefits of that section should circumstances change whilst the claimant is still serving as a member of the police force. The defendant citing Wilson at [70] emphasised that such certification can only be granted prior to formal discharge.

30. The defendant submitted that claimants under s 10B(2) of the Police Regulation Act are former members of the police force who have resigned or retired and the circumstances to be considered when applying the statutory test of incapability had already occurred. The defendant pointed out that the test for incapability is applied to a specific point of time in the past; either the former member was, or was not, incapable at that time. The defendant argued it would be a strained statutory construction that would require the defendant to revisit its original decision at the plaintiff’s further behest when the underlying circumstances at the time of resignation or retirement cannot change.

Consideration

31. In oral submissions, there was discussion about whether the Court was constrained by the decision in Wilson. As has often been emphasised, I am obliged to follow the decision of the Court of Appeal in Wilson on the statutory construction of s 10B(1) of the Police Regulation Act as the decision is not “plainly wrong” and there are no “compelling reasons” to depart from it: Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ); [1993] HCA 15; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [135] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ); Hill v Zuda Pty Ltd (2022) 275 CLR 24; [2022] HCA 21 at [25]-[26] (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ); see, Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 at 177 (Moffitt P); Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76 at [261]-[301] (Allsop P, Beazley and Basten JJA); Spicer Thoroughbreds Pty Ltd v Stewart [2023] NSWCA 82 at [56] (Leeming JA, Mitchelmore JA and Griffiths AJA agreeing) and the authorities there cited.

The Court of Appeal’s decision in Wilson

32. The appellant, Mr Wilson, was a former NSW police officer who had been medically discharged from the NSW Police Force on 6 April 2000. On 29 March 2000, shortly before being discharged, the PSAC certified that Mr Wilson was incapable, due to the specified infirmity of “chondromalcia (sic) patellae left knee”, of discharging the duties of his office under s 10B(1) of the Police Regulation Act. On 4 April 2000, a delegate of the Commissioner of Police determined that Mr Wilson’s infirmity was caused by him being “hurt on duty” under s 10B(3)(a) of the Police Regulation Act. The determination stated that the date of injury was 30 December 1997. Mr Wilson began receiving an annual superannuation allowance equal to 72.75% of his annual salary in accordance with s 10 of the Police Regulation Act, on the basis that he satisfied the definition of a “disabled member of the police force” in s 10(1).

33. By letter dated 3 December 2019, Mr Wilson made an application to the STC under s 10B(1) of the Police Regulation Act to amend his s 10B(1) certificate to include the infirmity of PTSD. In a response letter dated 4 December 2019, the STC advised it had no power to grant Mr Wilson’s request as it was “functus officio” in relation to his further application under s 10B(1). This was because the PSAC had made a decision on 29 March 2000 to grant Mr Wilson a s 10B(1) certificate and he had not challenged that decision.

34. The central issue before the Court of Appeal was limited to one of statutory construction namely, whether the primary judge had erred in implicitly concluding that the STC lacked power in December 2019 to certify the condition of PTSD as an additional infirmity pursuant to s 10B(1) in circumstances where a certificate of infirmity had been issued to Mr Wilson on 29 March 2000 certifying a different condition as the relevant infirmity.

35. In Wilson, Griffiths AJA (with whom Leeming and Kirk JJA agreed), dismissed the appeal and concluded that the scheme in the Police Regulation Act is not one which contemplated the possibility of a disabled member of the police force who is discharged and is granted an annual superannuation allowance under s 10, after meeting the requirements of s 10B(1), applying subsequently and possibly many years later with reference to a different infirmity of body or mind. Griffiths AJA said at [68]-[69]:

“[68] In considering the coherence of the scheme, it is important to note that, while there are different requirements pertaining to the two paths to certification under ss 10B(1) and (2) respectively, those requirements serve a common goal of promoting finality and certainty in the scheme. In the case of s 10B(1), a member of the Police Force who is discharged cannot be granted an annual superannuation allowance unless the respondent has certified the member to be incapable of discharging the duties of their office because of a specified infirmity of body or mind. In determining whether or not to issue such a certificate, the respondent must have regard to medical advice on the condition and fitness for employment of the member.

[69] The critical point is that these matters are all interrelated and are likely to occur around the same time, which time is focused on the decision whether or not to grant an annual superannuation allowance. A person who meets the first part of the definition of ‘disabled member of the police force’ can only be granted an annual superannuation allowance if, when the decision is being made, the respondent has certified the member to be incapable of discharging the duties of office with reference to a specified infirmity of body or mind and the person is discharged. It is also notable that, in deciding whether or not to grant the certificate, the respondent must have regard to medical advice. These various matters all fall to be determined conjunctively. The scheme is not one which contemplates the possibility of a disabled member of the Police Force who is discharged and is granted an annual superannuation allowance under s 10, after meeting the requirements of s 10B(1), applying subsequently and possibly many years later with reference to a different infirmity of body or mind.”

36. His Honour said further at [74]-[79]:

“[74] It is evident that the timing of the operation of ss 10B(1) and (2) is quite different. The former provision operates with reference to the time of a member’s discharge, whereas sub-section (2) looks backwards to the time of the member’s resignation or retirement. This difference in timing between the sub-sections is further highlighted in ss 10B(2A) and (2B), which respectively refer to sub-sections (1) and (2). Sub-section (2A) is relevant to the first pathway. Its focus is on whether the respondent has certified that the member ‘is incapable’ of discharging their duties. Such a certification may only be given ‘if the member is incapable of discharging the duties of the office in the police force in which the member is then employed…’ …

[75] In further contrast with sub-section (1), it should again be noted that in sub-section (2), there is a requirement of prior notification of injury in the case of a member who has retired or resigned. The notification must also be given in the prescribed form, where such a form exists. The notification is to be given to the Commissioner of Police before the member’s resignation or retirement and within six months of receiving the injury which has caused the member’s infirmity of body or mind.

[76] As the respondent submitted, the evident purpose of these requirements is to ensure that, in the case of a member who resigns or retires, notice of an injury which has caused the member’s infirmity has been given to the Commissioner of Police so that relevant persons are aware of at least the potential for a future claim to be made for an annual superannuation allowance in respect of the infirmity. I accept the respondent’s submission that these time limits reflect a statutory policy of drawing lines so as to inject a measure of certainty into the operation of the scheme and the potential liability of the fund. A similar policy is manifested in the time limit imposed by s 21(1) for seeking a review, now by the District Court.

[77] It is true that no similar distinct time limit applies to the path provided by s 10B(1). But no significance attaches to that omission in terms of statutory interpretation because, as emphasised above, the relevant functions of both the respondent (i.e., certification) and the Commissioner of Police (i.e., determination regarding being hurt on duty) fall to be exercised at or around the time of discharge. I accept the respondent’s submission that the absence of the term ‘specified’ in s 10B(2) (and in the related definition in subsection (b) of ‘disabled member of the police force’ in s 10(1)), strongly indicates that the specification of infirmity must, for the purpose of s 10B(1), occur at the time of discharge. This sits uncomfortably with the proposition that those functions may also need to be exercised by both the respondent and the Commissioner of Police on occasions which are subsequent to the time of discharge. The point is further reinforced by the fact that the definition of ‘disabled member of the police force’ in paragraph (a) of s 10(1) refers to a member ‘who is discharged after being certified…’ …

[78] I accept the following submission by the respondent in its written outline of submissions:

The statutory policy that emerges from the text of the Act is that certifications of infirmity pursuant to either s.10B(1) or s.10B(2) require the respondent to consider the condition of the plaintiff at the time the member or former member is rendered ‘incapable’ for duty. The scheme operates coherently by ensuring that the Commissioner of Police will be well-placed to perform her function under s.10B(3) of making an assessment of whether that infirmity was caused by the member being hurt on duty. Either the ‘specified infirmity’ will be certified at the time of discharge, or there will have been notification of the injury prior to resignation/retirement and within 6 months of the injury. The statutory scheme does not contemplate certification under s.10B(1) many years later, forcing the Commissioner of Police to endeavour to perform her function under s.10[B](3) (sic) many years later without the benefit of the contemporaneous notification required by s.10B(2).

…

[79] There is a further matter which weighs against the appellant’s construction. It relates to the significance of the fact that the statutory scheme includes a right of review under s 21 of certain decisions of the respondent and the Commissioner of Police. … There are two points to note about this provision. First, the limitation period of six months reflects the need for certainty and finality, as one might expect in a contributory superannuation scheme such as this. Secondly, it is notable that if the District Court decides to set aside a relevant decision of the respondent or the Commissioner of Police and replace it with a different decision, that decision must be one which could have been made by the respondent or the Commissioner of Police, as the case may be. In that sense, the District Court stands in the shoes of the respondent or the Commissioner of Police depending upon which decision is challenged.” (emphasis in original)

37. Leeming JA in additional remarks observed at [10]-[14]:

“[10] Many indications tell against the construction for which Mr Wilson contends. One is the difficulty that would be encountered if the original certificate had been issued by the Compensation Court. It is to be borne in mind that the right of appeal when exercised results in a judgment binding both the member and STC. It is difficult to avoid the conclusion that a subsequent application to vary the certificate or issue a separate one would be inconsistent with that judgment. Nothing in the regime encourages the conclusion that it displaces principles of finality of judgments and res judicata which would be generated by a judgment of the Compensation Court.

[11] A second is the express entitlement in some respects to make applications at any time in the future, notably pursuant to s 10(1D) in respect of an entitlement to an ‘additional amount’, although, as Mr Emmett candidly acknowledged, that amounts to an expressio unius argument, warranting only cautious reliance.

[12] A third is the proposition that the regime depends upon a formal document, namely, the certificate to be issued by STC. Section 10B(3)(a) presupposes that there is to be a single certificate. Nothing in the regime suggests how the power to amend or replace would operate in practice (including delivery up and destruction of the earlier certificate, and whether the alterations would have retrospective or only prospective effect).

[13] A fourth is that there was no suggestion that any exercise of a power to revisit a certificate would necessarily be to the advantage of the member. Thus one consequence of accepting the appellant’s construction is that members who had the benefit of a certificate might be exposed to the possibility of a review of the question of incapacity, perhaps many years after the event. That sits ill with the way schemes such as this operate. There is a great deal to be said that the purpose of the scheme would be enhanced by having the entitlement to an annual superannuation allowance determined once and for all, rather than exposing recipients of superannuation payments to the risk that at some unspecified time, possibly far in the future, an application might be made to alter the formal certificate on the basis of which their superannuation was based.

[14] All of those considerations tend to reinforce the consequence which emerges from the textual considerations explained by Griffiths AJA, namely, that the certification under s 10B(1) which is a precondition to any entitlement to the superannuation allowance is to occur once and for all at around the time of discharge.”

38. In an application for special leave to the High Court, Mr Wilson raised the following as special leave questions at par 7:

“In circumstances where the Court of Appeal had previously determined in [Pascoe] that the Respondent trustee was entitled to review and reconsider previous certifications (or refusals to certify) with respect to its beneficiaries, which decision of the Court below is correct at law, [Pascoe] or [Wilson]?”

39. In written submissions for special leave, Mr Wilson referred at par 46 to the decision in Pascoe being “affirmed as correct by this Court in refusing special leave”: see, Pascoe v SAS Trustee Corporation [2023] HCASL 69. Mr Wilson stated at par 48:

“Wilson makes no reference to the past 30 years of jurisprudence on the issue (including Pascoe), past practice, and various relevant statutory provisions governing the scheme.”

40. I pause here to observe that these submissions bare similarity with the submissions made on behalf of the plaintiff in these proceedings as to why Wilson should not be followed. Attention was drawn in the submissions on special leave at par 15 and in the plaintiff’s submissions to the following passage in Basten AJA’s judgment in Pascoe at [48]:

“Mr Pascoe’s central proposition in relation to this issue was that, having delegated power to determine his claim of incapacity to the PSAC, the Board had no power to review that decision if the claimant were dissatisfied with the PSAC decision. In effect, there were two limbs to that proposition. The first was that, having delegated its function to the PSAC, the Board itself retained no decision-making power with respect to that function. The second was that, having purported to make a final decision, the PSAC foreclosed any possibility of reconsideration or review, otherwise than by the statutory avenue of appeal. Neither of these propositions should be accepted.”

41. The application for special leave to appeal in Wilson was refused with costs: Wilson v SAS Trustee Corporation [2024] HCASL 199. The High Court stated at [2]:

“The Court of Appeal’s judgment is not attended by sufficient doubt to warrant a grant of special leave to appeal. Accordingly, it would be futile to grant the extension of time sought.”

42. The appeal in Wilson concerned s 10B(1) of the Police Regulation Act whereas the present proceedings concern s 10B(2). As the plaintiff submits, there is no express provision in the Police Regulation Act which confines a police officer who has resigned from the NSW Police Force to making one application for a superannuation allowance under s 10B(2), with that application being “once and for all”.

43. In Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11, Gleeson CJ observed at [5]-[6]:

“[5] There is nothing in the nature of an administrative decision which requires a conclusion that a power to make a decision, once purportedly exercised, is necessarily spent. In Ridge v Baldwin [1964 AC 40 at 79], Lord Reid said:

‘I do not doubt that if an officer or body realises that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present his case, then its later decision will be valid.’

[6] That general proposition must yield to the legislation under which a decision-maker is acting. And much may depend upon the nature of the power that is being exercised and of the error that has been made.” (footnote omitted)

44. The meaning of s 10B(2) of the Police Regulation Act is to be determined by its text considered in light of its context and purpose: SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14] (Kiefel CJ, Nettle and Gordon JJ). In SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55 (“Miles”), the plurality observed at [20] (Kiefel CJ, Bell and Nettle JJ):

“Where the text read in context permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies.” (footnote omitted)

45. In Wilson, the Court of Appeal applied the principles of statutory interpretation before reaching the conclusion that s 10B(1) of the Police Regulation Act does not permit a further application; that the determination to an entitlement for a superannuation allowance is once and for all around the time of discharge. Griffiths AJA observed at [68] the requirements in ss 10B(1) and (2) though different “serve a common goal of promoting finality and certainty in the scheme”.

46. An understanding that the legislature ordinarily intends to pursue its purposes in a coherent and harmonious manner powerfully supports a conclusion that the reasoning in Wilson applies with equal force to s 10B(2) of the Police Regulation Act: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]-[71] (McHugh, Gummow, Kirby and Hayne JJ); Miles at [41] (Gageler J). Furthermore, there are textual indications that the same reasoning applies. Section 10B(2)(a) requires notification of the injury before the resignation or retirement and s 10B(2)(b) makes it clear that certification of the former member’s incapacity is at the time of resignation or retirement. In Wilson, Griffiths AJA accepted at [76] that “these time limits reflect a statutory policy of drawing lines so as to inject a measure of certainty into the operation of the scheme and the potential liability of the fund”. His Honour referred to a similar policy being manifested in the time limit imposed by s 21(1) for an appeal seeking a review by the District Court which applies relevantly to persons aggrieved by an STC decision made under ss 10B(1) and (2).

47. The facts of this case demonstrate the importance of having the entitlement to an annual superannuation allowance being determined once and for all. In Berrick Boland, the majority of the Full Bench of the IRC in 1999 agreed with the conclusions of Fisher P that the evidence established the plaintiff was not incapable of discharging his duties. In particular, the evidence showed that the plaintiff had worked for a number of years “in an entrepreneurial role, achieved an annual remuneration level of up to $124,000 and acquired cars, homes and units consistent with the attainment of significant prosperity …” (see [14]-[15] above). To allow the plaintiff some 20 years later to reagitate the factual and medical considerations as to his capacity to discharge his duties as a police officer at the time of his resignation on 10 April 1995 when the plaintiff has previously availed himself of the right of appeal and been unsuccessful would render nugatory the statutory requirement under s 21(1) of the Police Regulation Act to lodge an appeal within 6 months of notification and would displace the principles of finality of judgments and res judicata.

48. The defendant has neither the power nor the duty to determine the plaintiff’s further application under s 10B(2) of the lodged on 21 November 2019.

Orders

49. No submissions were made by the parties that there should be any order other than costs should follow the event.

50. Accordingly, I make the following orders:

51. The summons is dismissed.

52. The plaintiff is to pay the defendant’s costs.

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Amendments

19 March 2026

The word "not" deleted in [28]

26 June 2026

Citation amended at [31].