Boland v SAS Trustee Corporation

1. [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:

2. [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. [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. [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. [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. [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 Police Regulation Act 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:

7. [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. [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:

9. [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. [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

1. [11]

   The agreed facts are as follows:

Agreed issues

1. [12]

   The agreed issues are as follows:

Some additional facts

1. [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.

2. [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:

3. [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:

4. [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:

5. [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:

6. [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:

7. [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

1. [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)):

2. [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).

3. [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.

4. [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.

5. [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).

6. [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].

7. [26]

   In oral submissions, Mr Morris was referred to the judgment of Griffiths AJA and the additional remarks of Leeming JA in Wilson v SAS Trustee Corporation [2024] NSWCA 53 (“Wilson”). Mr Morris submitted that there were countervailing considerations which were against the judgment of their Honours in Wilson. Mr Morris argued that their Honours do not appear to have regard to the provisions of the Administration Act, that there are specific statutory directions to the trustee, which make it clear that the trustee has an obligation to avert their mind and make a conclusion; and that the trustee has an obligation to proceed to a decision on the application.

8. [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.

9. [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.

10. [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.

11. [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

1. [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.

2. [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).

3. [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.

4. [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.

5. [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]:

6. [36]

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

7. [37]

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

8. [38]

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

9. [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:

10. [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]:

11. [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]:

12. [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”.

13. [43]

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

14. [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):

15. [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”.

16. [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).

17. [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.

18. [48]

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

Orders

1. [49]

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

2. [50]

   Accordingly, I make the following orders:

   1. (1)

      The summons is dismissed.

   2. (2)

      The plaintiff is to pay the defendant’s costs.