Commissioner for Superannuation v Benham

[1989] FCA 111

Re: THE COMMISSIONER FOR SUPERANNUATION
And: CHERYL MAY BENHAM
No. ACT G14 of 1988
FED No. 111
Superannuation
22 FCR 413

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Morling(1), Beaumont(1) and Burchett(1) JJ.

CATCHWORDS

Superannuation - retirement on ground of invalidity before maximum retirement age - Pre-existing physical condition specified in benefit classification certificate - Subsequent physical condition causing, or substantially contributing to, incapacity resulting in early retirement - Whether "connected with" pre-existing condition - Whether an aggravation of another condition caused by a certified condition is "connected with" the certified condition - Beneficial construction of legislation.

Superannuation Act 1976 (Cth), s.66.

HEARING

SYDNEY

#DATE 4:4:1989

Counsel for appellant: Mrs P. Flemming Q.C. with Miss C.C. Simpson

Instructed by: Australian Government Solicitor

Counsel for respondent: Mr K.J. Crispin Q.C. with Mr I.W. Nash

Instructed by: Messrs Bernard Collaery

ORDER

The appeal be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal from a decision of a judge of the Court dismissing an appeal from a decision of the Administrative Appeals Tribunal. The Tribunal upheld an appeal by the respondent against a decision of the Commissioner for Superannuation to decline to pay invalidity benefits to her in accordance with s.66(1) of the Superannuation Act 1976 ("the Act").

1. Section 66(1) of the Act provides, relevantly, that, except where s.66(2) applies, an officer of the Australian Public Service who ceases to be an employee of the Commonwealth by reason of retirement on the grounds of invalidity before attaining maximum retiring age is entitled to certain benefits. Section 66(2) provides for reduced benefits to be paid where:
   

"(a) a person ceases to be an eligible employee by reason of retirement on the ground of invalidity before attaining his maximum retiring age;

(b) there was in force in respect of the person, immediately before the person's retirement, a benefit classification certificate; and

(c) the Commissioner is of the opinion that the incapacity which was the ground for his retirement was caused, or was substantially contributed to, by a physical or mental condition or conditions specified in the certificate or by a physical or mental condition or conditions connected with such a condition or such conditions".

1. The issue of benefit classification certificates is provided for in s.16. In substance, s.16(4) provides that the Commissioner, if he is of the opinion that a person is not likely, by reason of a physical or mental condition from which he suffers, to continue to be an employee of the Commonwealth until he attains his maximum retiring age, shall issue a benefit classification certificate to that effect, being a certificate in which the relevant condition is specified.

2. There is no real dispute between the parties as to the relevant facts. The following account of them is taken from the trial judge's reasons.

3. On 4 April 1980 the respondent was appointed as an officer of the Australian Public…