Clark and Commonwealth Superannuation Corporation

This matter concerned an appeal by the Applicant, WO1 Clark, against decisions of the Commonwealth Superannuation Corporation concerning his superannuation entitlements. The central dispute revolved around whether the Applicant had made a valid election under section 61B of the relevant Act to remain in the Defence Force Retirement and Death Benefits Scheme (DFRDB) rather than becoming a member of the Military Superannuation Scheme (MSBS) prior to recommencing a period of continuous full-time service (CFTS) on 23 March 2015.

The legal issue before the Tribunal was whether the Applicant had complied with the requirements of section 61B of the Act by giving written notice of his election to the Respondent before he commenced his second period of CFTS. This required determining the precise timing of the Applicant's election and whether it was effectively communicated to the Respondent prior to his recommencement of service.

The Tribunal considered the Applicant's evidence and documentary material, including an AD 600 form signed on 2 March 2015, which acknowledged his responsibility to elect a superannuation fund before undertaking CFTS. However, the Tribunal found significant inconsistencies in the Applicant's account of when he submitted his election. Crucially, the Applicant stated in an email to Major Pointon that he did not sign and fax a D100 form until 25 March 2015, after commencing his CFTS. Further, an email from the Respondent on 25 March 2015 indicated the Applicant had made an enquiry, contradicting his assertion that the Respondent had contacted him. The Tribunal also noted the Applicant's contradictory statement in a later email that he had emailed his D100 form, which he had previously denied. Based on these inconsistencies and the absence of documentary evidence supporting an election prior to 23 March 2015, the Tribunal concluded that the Applicant had not made a valid election before resuming service.

Consequently, the Tribunal varied the decision under review dated 14 February 2017 to state that the Applicant failed to complete an election not to become a member of the MSB Scheme prior to recommencing service on 23 March 2015, and as a result, he became a member of the MSB Scheme as at that date. The Tribunal also affirmed the decision under review dated 11 August 2017.