Commissioner for Superannuation v Benham, C.M

Re: THE COMMISSIONER FOR SUPERANNUATION
And: CHERYL MAY BENHAM
No. ACT G68 of 1986
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves J.(1)

CATCHWORDS

Administrative Law - Administrative Appeals Tribunal - Appeal - 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.

Administrative Appeals Tribunal Act 1975 (Cth), s.44

Superannuation Act 1976 (Cth), s.66

HEARING

CANBERRA

#DATE 14:4:1988

Counsel for the applicant: Mr H.G. Shore

Solicitor for the applicant: Australian Government Solicitor

Counsel for the respondent: Mr K.G. Crispin

Solicitor for the respondent: Mr B. Collaery

ORDER

The appeal be dismissed.

The applicant pay the respondent's costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36

of the Federal Court Rules.

JUDGE1

This appeal, which is brought by the Commissioner for Superannuation ("the Commissioner") pursuant to s.44 of the Administrative Appeals Tribunal Act 1975 (Cth), seeks an order setting aside a decision of the Administrative Appeals Tribunal ("the Tribunal") given on 17 September 1986. The issue before the Tribunal concerned the level of benefits to which the respondent, Cheryl May Benham, is entitled under the Superannuation Act 1976 (Cth) ("the Superannuation Act"). The respondent claims she is entitled to invalidity benefits in accordance with sub-s.66(1) of the Superannuation Act. The Commissioner asserts that her entitlement is to the reduced benefits provided by sub-s.66(2). The Tribunal upheld the respondent's claim.

1. Sub-section 66(1) of the Superannuation Act provides, subject to certain provisions which are not material for present purposes, that, except where sub-s.66(2) applies, a person who ceases to be an eligible employee by reason of retirement on the ground of invalidity before attaining maximum retiring age is entitled to certain benefits. Sub-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. The Commissioner may, for the purposes of that section, require a person who proposes to become or becomes an eligible employee, as defined in sub-s.3(1), to undergo such medical examination or examinations by an approved medical practitioner or practitioners as the Commissioner determines (sub-s.16(2)). A report or reports of the result or results of the medical examination or examinations is to be furnished…