Koplick v State Service Superannuation Board

[1997] QSC 166

IN THE SUPREME COURT

OF QUEENSLAND

No 6246 of 1996

Brisbane

Before the Hon. Justice Williams

[Koplick v. State Service Superannuation Board]

BETWEEN:

ROY STANLEY KOPLICK
  Applicant

AND:

STATE SERVICE SUPERANNUATION BOARD
  Respondent

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 12/09/1997

CATCHWORDS:     SUPERANNUATION - entitlement to contribute - statutory construction - review of decision of Board that applicant not entitled to contribute to fund - application refused.

Public Service Superannuation Act 1958.
State Service Superannuation Act 1972: sections 3, 3A, 66 and 73.

Counsel:Ms RM Treston for applicant

O’Grady for respondent

Solicitors:Quinlan Miller & Treston for applicant

Crown Solicitor for respondent

Hearing Date:              5 August 1997

IN THE SUPREME COURT

OF QUEENSLAND

No 6246 of 1996

Brisbane

[Koplick v. State Service Superannuation Board]

BETWEEN:

ROY STANLEY KOPLICK
  Applicant

AND:

STATE SERVICE SUPERANNUATION BOARD
  Respondent

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 12/09/1997

This is an application by Roy Stanley Koplick (“the applicant”) pursuant to the Judicial Review Act 1991 for a statutory order of review of a decision of the respondent, State Service Superannuation Board, evidenced by its Statement of Reasons dated 2 July 1996. In order to determine whether there was any error of law (s.20(2)(f) of the Judicial Review Act) in the decision under review it is necessary to refer to background facts. Because relevant events occurred over a lengthy period of time it is more convenient to set out those facts in chronological order.

The applicant, who was born on 23 May 1944 joined the public service as a prison officer in April 1967.  Having completed his period on probation he applied on or about 19 June 1969 for admission to The Public Service Superannuation Fund.  That Fund had been created by The Public Service Superannuation Act 1958.  It is not necessary for present purposes to refer to any specific provisions of that Act.

In accordance with the requirements that Act the applicant was medically examined on 19 June 1969.  It was found that he was overweight for his height and the Assistant Government Medical Officer recommended that his application for admission to the Fund be deferred for twelve months.  The Public Service Superannuation Board constituted pursuant to the 1958 Act decided in accordance with that recommendation, and by letter dated 4 July 1969 the applicant was informed that his application to become a contributor to the Fund was deferred for twelve months.

On 8 December 1970 the applicant again submitted himself to a medical examination for purposes of becoming a contributor to the Fund.  The finding by the Medical Officer was again the same; he was overweight for his height.  The applicant was notified by letter dated 21 December 1970 that “your liability to contribute to the Fund for units of annuity, incapacity and assurance (widow’s pension) benefits be deferred without limit of time.”  In other words his application to join the fund as a full contributor was refused.  That letter did go on to inform the applicant that pursuant to Part VA of the Act he could “apply to contribute for units of annuity benefit only to a number not exceeding the number applicable to your salary.”  It would appear that the applicant on receipt of that letter did not fully understand his entitlement under Part VA.  He apparently believed that he had no rights at all.  In consequence the applicant made his own private superannuation arrangements.

On 19 December 1972 assent was given to the State Service Superannuation Act 1972. By s.18 the Fund established by the 1958 Act was preserved and continued in existence under the 1972 Act under the name “State Service Superannuation Fund”. The 1972 Act introduced significant changes to superannuation for Queensland public servants; it provided a new regime for superannuation effectively replacing the 1958 Act. By virtue of s.73(2) of the 1972 Act the 1958 Act no longer applied to the applicant. Relevantly s.3 of the 1972 Act provided:

“This Act applies to and in relation to -

...

(b)a person -

(i)who was an officer within the meaning of the 1958 Act immediately before the commencement of this Act;

(ii)who continues on the said commencement to be an officer; and

(iii)who is not a continuing contributor.”

It is accepted that the applicant was covered by that provision; he was thus a person to whom the 1972 Act applied.  He had a right to apply for membership of the Fund pursuant to the provisions of that Act.  However the applicant did not so apply.  He maintains he was not aware of the new legislation.

Section 66 of the 1972 Act should also be noted:

“(1)Where the Board is satisfied, after such enquiry as it thinks necessary, that a person has, otherwise than through his own fault, lost or ceased to be entitled to a right, privilege, or benefit under this Act to which he was otherwise entitled or might have obtained, and that it is just and equitable that he should be allowed to have the enjoyment of the right, privilege, or benefit, the Board may, with the approval of the Minister, permit the person to exercise the right or grant to him the privilege or benefit notwithstanding that the time prescribed for doing any action in relation thereto may have expired.”

Section 3 of the 1972 Act was amended by the Superannuation Act Amendment Act 1974 which received assent on 24 April 1974. Section 4 thereof added to s.3 the following words:

“but unless an officer being a person to whom paragraph (b) relates -

(g)who, not being bound to contribute under the 1958 Act unless he elected to do so, did not so elect before the commencement of this Act; or

(h)who was not a contributor under the 1958 Act immediately before the said commencement by reason that he had been wholly exempted by the Board from the requirement to contribute under that Act or that his liability to so contribute had been deferred without limit of time.

elects to contribute under this Act within a period of six months after the commencement of the Superannuation Acts Amendment Act 1974, this Act shall be deemed not to apply, or to have at any time applied, to and in relation to that officer.”

As at 24 April 1974 the applicant was a person whose liability to contribute under the 1958 Act had been deferred without limit of time and therefore he had six months from that date within which to elect to become a contributor under the 1972 Act.  As the applicant did not so elect by 24 October 1974 the 1972 Act strictly no longer applied to him; that is he had no enforceable rights thereunder.  He maintains he was not aware of the amendment.

There was a further amendment to s.3 of the 1972 Act made by s.5 of the Superannuation Acts Amendment Act 1978, which was assented to on 2 June 1978. It added a new subsection (2) to s. 3 reading as follows:

“An officer being a person who was eligible to become a contributor under this Act before the commencement of the Superannuation Acts Amendment Act 1978 but not bound to contribute under this Act unless he elected to do so may, notwithstanding that he did not elect to contribute under this Act within the time prescribed and the provisions of subsection (1) with respect to the non-application of this Act to an officer upon his failure to so elect, elect to contribute under this Act on or before 31 December 1978 but unless he does so elect this Act shall be deemed not to apply or to have at any time applied to or in relation to that officer.”

As the applicant did not elect to join the Fund within the six month time limit referred to in the 1974 Act the consequence therefore of the 1978 Act with regard to him was that he had until 31 December 1978 to elect to contribute, otherwise the legislation (the 1972 Act) would be deemed not to apply to him.

The Board required all “Employing Authorities” to supply each employee who was not a contributor a memorandum entitled “Notice to Non-Contributors”.  Then each “Employing Authority” was required to certify to the Board that each non-contributor in its employ had been supplied with a copy of the notice.  That was obviously intended to give practical effect to the 1978 Amendment which was probably enacted because of complaints that non-contributors were not aware of the 1974 amendment.  Such a certificate from the Permanent Head of the Prisons Department was submitted to the Board on 3 July 1978.  It specifically stated that “each person who is employed by H.M. Prison, Wacol and who is not a contributor ... has been supplied with a copy of the document entitled “Notice to Non-Contributors”.”

The applicant has always been adamant that he did not receive such a notice.  It is also clear on the material that there are no records held by the Prisons Department specifically recording or acknowledging that such a form was received by the applicant.  There is reference in the material to the fact that communications for employees of that Department were left in pigeon holes under the employee’s name, and, of course, there was in those circumstances no certainty that any document would be received by the addressee.

The applicant maintains that he was not aware of the legislation in 1972, 1974 and 1978 and was not aware that his rights could be adversely affected by his failing to take action by 31 December 1978.  I am prepared to assume those matters as facts for present purposes.

The next relevant event was a telephone enquiry the applicant made of the Board on 13 May 1981.  He was then told that he should have applied to become a contributor prior to 31 December 1978, but he was also informed he could make an application in writing giving reasons and it would be submitted to the Board.  He did not submit any application in writing to the Board until his letter of 14 February 1983.  The Board considered that application at its meeting on 9 March 1983 and decided not to approve it.  That decision was communicated to the applicant by letter dated 17 March 1983 which said, inter alia:

“Under the provisions of the State Service Superannuation Act you were required to make an election to contribute by 31 December, 1978. The Prisons Department advised on 24 August 1978 that each person who was employed in that Department and who was not a contributor to the Fund was supplied with information concerning the final date for elections to contribute.

The Board has considered the reasons for your late lodgment and I advise that it was not approved that you be permitted to contribute to the Fund.”

Two observations should be made with respect to that decision. Firstly, it does not appear whether or not the Board specifically directed its mind to the provisions of s.66 quoted above. Secondly, in his letter of 14 February 1983 the applicant did not specifically give reasons for his failure to meet the deadline of 31 December 1978.

Nothing further was done by the applicant until he made another application to become a contributor to the Fund by letter dated 11 June 1984. In the course of that letter he said: “Approximately two year ago I again applied to become a contributor and was advised that I had the opportunity to join the Scheme in 1978, but I honestly believe that I did not receive any notification at that time.” That application was considered at a Board meeting on 29 August 1984 and it was not accepted. Again it is not clear whether or not the Board directed its mind to the provisions of s.66. The letter from the Board to the applicant is dated 6 September 1984 and relevantly it says: “The State Service Superannuation Board has recently considered all of the circumstances of your case and I am directed to advise that the Board has reaffirmed its previous decision that you not be permitted to contribute to the Fund.”

The applicant then approached a parliamentarian and sought his aid.  That parliamentarian wrote to the Board on 29 August 1986 and requested that further consideration be given to the matter.  The response from the Board was dated 17 September 1986 and the last paragraph thereof is in these terms:  “The State Service Superannuation Board has, on several occasions, reviewed the circumstances of Mr Koplick’s late application to join the State Service Superannuation Fund in accordance with its prescribed authority to consider such matters, and has not been satisfied that his application should be approved.”

Nothing further happened until 22 October 1987 when the Queensland State Service Union wrote to the Board on behalf of the applicant.  Annexed to that letter was a Statutory Declaration by the applicant stating “that to the best of my ability and knowledge I have never been informed by either the Department or the Superannuation Board that I am able to elect to contribute to the Superannuation Board”.  The Board replied by its letter of 17 November 1987 stating that “taking into consideration all circumstances involved” in the application it did not approve of the late application.

The next step taken by the applicant was that of writing a letter to the Chief Superintendent of the Brisbane Prison dated 21 March 1988.  He recounted the history of his dealings with the Board and asserted that “at no time did I receive official information that I was eligible to contribute for full benefits.  Had I been so advised, I would have done so.”  He then raised with the Superintendent the question whether or not he had in fact been advised in August 1978 of his then rights under the Act.  He asked the Superintendent to advise the Board of the procedures which prevailed at that time with regard to advising officers of changes in conditions of employment.  That letter elicited a response to the effect that a check of both staff and salary records failed to show anything indicating that the applicant received a notice of the type referred in the certificate of 24 August 1978.  In consequence the Comptroller-General of Prisons wrote to the Board on 18 April 1988 asserting that it was “reasonable to assume that he was not informed” of his rights.  It also contained the statement that “it can only be concluded that Mr Koplick was not informed of his options at that time.”  In consequence the Comptroller-General gave his full support to the application.  The response from the Board dated 4 May 1988 drew attention to the certificate of 24 August 1978 and pointed out that it “did not suggest that any employees had been excluded from the procedure”.  The final paragraph of that letter was in these terms:

“The Superannuation Board has the authority to accept Mr Koplick’s late application only if it is satisfied that he was unaware of the opportunity to submit an in-time application.  In the absence of substantial evidence to contradict the certification that all affected employees were supplied with a notice as instructed, the Board cannot be satisfied that Mr Koplick was unaware of the opportunity to join the Fund in 1978.”

On 13 June 1990 the Superannuation (State Public Sector) Act 1990 was assented to. It provided a new scheme for superannuation for Queensland public servants. The applicant elected to join that new scheme, but his contributions and benefits only applied as and from the date of his joining that scheme. It would appear that the clear intention of the legislature was that all new public servants should join the scheme established by the 1990 legislation.

There was then a further amendment to the 1972 Act introduced by the Superannuation (Miscellaneous Acts) Amendment Act 1991, assented to on 15 April 1991. Section 3.2 introduced a new s.3A to the 1972 Act in these terms:

“Notwithstanding s.3, on and after the date of commencement of s.3.2 of the Superannuation (Miscellaneous Acts) Amendment Act 1991, no officer may become a contributor other than a person who on becoming an officer -

(a)is permitted to contribute to the Fund in accordance with s.4(9);

or

(b)makes an election under s.35(2B).”

That section commenced operation on 11 May 1991. The applicant is not caught by either of the exceptions in (a) and (b) of the new s.3A. It will be necessary to return to the proper construction of s.3A later.

On 8 November 1995 the applicant made a final application to join the State Service Superannuation Fund.  That letter contained the following:

“I am aware that the Board has relied upon a Certificate supplied by the Wacol Prison Office which certifies that all non-members were informed of the date by which they must elect to join the Fund or not.  I have stated repeatedly however that I never received any notice of the necessity to elect to join the Fund and a Statutory Declaration to that effect was signed by me on 21 October 1987.  I feel that I have lost a substantial benefit by reason of the Board’s failure to accept me as a Member of the Fund.  While I joined the Fund in 1990, I wish to have my joining date backdated to 1978 when I apparently should have made the election to join.  I would be happy to pay up all contributions from the time when I could have made the election to join up until now, if the Board will in fact accept me into the Fund.
I therefore ask that the Board give further consideration to my request and notify me of their decision as soon as possible.”

The Board replied by letter dated 20 November 1995 stating that it had “reviewed the circumstances of your case, on a number of occasions, in accordance with its prescribed authority to consider such matters and has not been satisfied that your application should be approved.  As you have not provided evidence which has not been previously considered by the Board in support of your appeal, it is not proposed to resubmit the matter for further consideration at this time.”

Solicitors acting on behalf of the applicant wrote to the Board by letter dated 12 June 1996 requesting a written statement of reasons in relation to the decision not to approve of the application. In consequence the Board provided a statement of reasons pursuant to the Judicial Review Act 1991 in relation to its decision not to allow the applicant to backdate his entry into the State Service Superannuation Scheme. Those reasons set out s.3A of the 1972 Act, and recite the application of 8 November 1995 requesting that re-entry into the Scheme be backdated to 1978. The Board then set out its findings on various “material questions of fact” most of which have been referred to above; it is not necessary to refer to those findings further. The Board’s reasons for decision were effectively stated in the following paragraph:

“The State Service Superannuation Board was of the view that s.3A of the State Service Superannuation Act would operate to prevent former contributors such as Mr Koplick from being admitted as contributors to the Scheme. The Board did not consider that there would be any discretion that could be exercised to assist former contributors such as Mr Koplick.”

Though the various changes to the superannuation legislation appear complex the intention behind the sections quoted is relatively clear upon careful analysis. The 1958 Act provided a superannuation scheme for public servants. It was decided in 1972 to revise and improve the scheme. Persons joining the public service after the passing of the 1972 Act were entitled to become contributors to that new scheme. Public servants who were contributors under the 1958 scheme were otherwise catered for; it is not necessary to refer here to provisions relating to them. That left those public servants who had joined the service prior to the passing of the 1972 Act but who, for some reason, were not contributors to the 1958 scheme; one can probably assume that only a relatively small number were involved. Section 3 of the 1972 Act as initially enacted gave those persons a right to elect to join the 1972 scheme. One can readily see why the administrators of the scheme thought it desirable to impose some time limit during which that small group could exercise a right to elect. Initially there was no time limit but one was then imposed by the 1974 amendment. By that amendment a public servant caught by its provisions and who did not elect to become a contributor within six months lost any right to elect; further the 1972 Act did not apply to that person if there was no timely election. So far as this applicant is concerned, the legislation provided that he had no right to elect to become a contributor after 24 October 1974 and from that date the 1972 Act did not apply to him.

As already noted the 1974 amendment could have created problems because public servants caught by its provisions were not aware of the time limit imposed.  The group of public servants in question was therefore given an additional right by the 1978 legislation to elect to become contributors to the Fund by 31 December 1978.  Again the effect of that 1978 amendment was that any public servant, caught by its provisions, who did not elect to become a contributor by 31 December 1978 no longer had any rights under the 1972 Act, and the 1972 Act no longer applied to that person.  Thus the 1972 Act did not apply to this applicant after 31 December 1978.

The principal submission advanced on behalf of the applicant was that, for some or all of the period from 19 December 1972 until 11 May 1991, the applicant could invoke s.66 of the 1972 Act in order to have the Board in the exercise of its discretion grant him the privilege of becoming a contributor to the Fund. One of the difficulties that I have with that submission is that the effect of the applicant’s failure to elect in accordance with the provisions of the 1974 and 1978 amendments was that the 1972 Act did not apply to him. If that Act did not apply to him how could he invoke s.66 in order to have the Board adjudicate upon his asserted rights and privileges.

Once the new scheme pursuant to the 1990 Act was introduced one can readily understand that those responsible for administering the superannuation funds would want to be certain that there could be no new members under the 1972 scheme.  That is why the 1991 amendment was passed.

The respondent Board was bound by the legislative provisions referred to. After 11 May 1991, even if it had some jurisdiction under s.66 of the 1972 Act with respect to the applicant, it could not make a valid decision having the effect that a public servant become a contributor for the first time under the 1972 scheme; that result is expressly prohibited by s.3A of the 1972 Act inserted by the 1991 amendment. In other words, even if the Board wanted to it could not after 11 May 1991 make a decision permitting a public servant to become a new contributor to the 1972 scheme.

Much of the argument was taken up with attempts to define the applicant’s relevant “right” for purposes of s.66. In the circumstances I do not consider it necessary to deal in any detail with those submissions. Suffice it to say that in my view the applicant lost any right to elect to join the 1972 scheme pursuant to both the 1974 and 1978 amendments. Thereafter any right which he may have had was limited to a right to have the respondent Board consider his situation by relying on provisions such as s.66. But even if after 1978 he had a right to have the Board consider his application the Board was deprived of any power to allow him to become a contributor once the 1991 amendment was passed.

The Board appears to have considered that, despite the wording of the 1974 and 1978 amendments, the applicant had some right to make an application prior to 11 May 1991 to become a contributor to the 1972 Fund. It appears to have dealt with such applications on the merits and that must, of necessity, mean in the light of s.66. If it be relevant I cannot discern any error of law in the way it dealt with the applications before that made by the letter of 8 November 1995.

It follows that the respondent Board did not make any error of law in determining the application as it did.

This application should be dismissed with costs.