Marshall v Emergency Services Superannuation Board - [2021] VSC 225

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 02253

PETER MARSHALL	Appellant
– and –
EMERGENCY SERVICES SUPERANNUATION BOARD	First Respondent
UNITED FIREFIGHTERS’ UNION OF AUSTRALIA	Second Respondent

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JUDGE:	Cavanough J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 May 2020. Last written submission filed 18 June 2020.
DATE OF JUDGMENT:	30 April 2021
CASE MAY BE CITED AS:	Marshall v Emergency Services Superannuation Board & Anor
MEDIUM NEUTRAL CITATION:	[2021] VSC 225

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ADMINISTRATIVE LAW – Application for leave to appeal from decision of Victorian Civil and Administrative Tribunal (‘VCAT’) relating to public sector superannuation – Application argued in Court without reference to any question about VCAT’s jurisdiction – Court later perceiving reason to doubt VCAT’s jurisdiction – Matter to be relisted for further argument – Emergency Services Superannuation Act 1986 (Vic) s 23 – Victorian Civil and Administrative Tribunal Act (1998) (Vic) ss 45, 46, 148.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	MR Pearce SC with D Langmead	Davies Lawyers
For the First Respondent	SJH Ure	Hall & Wilcox
For the Second Respondent	RC Kenzie QC with TJ Dixon	Mills Oakley

HIS HONOUR:

This matter comes to the Court as an application for leave to appeal and, if leave be granted, an appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’), on questions of law, from an order of the Victorian Civil and Administrative Tribunal (‘VCAT’) purported to have been made in the exercise of its review jurisdiction.

From 1984 to 1995, the appellant, Mr Peter Marshall, was an operative professional firefighter in Melbourne. He remains an officer or employee of the Melbourne Metropolitan Fire Brigades Board. Since 1995 he has been on unpaid leave of absence to serve as the paid Secretary of the Victorian Branch of the second respondent, the United Firefighters’ Union of Australia (‘the Union’). For some or all of that period he has also served as the paid National Secretary of the Union.

The first respondent, the Emergency Services Superannuation Board (‘the Board’), administers a defined benefits superannuation scheme pursuant to the Emergency Services Superannuation Act 1986 (Vic) (‘the Act’). Mr Marshall has been a contributor to the defined benefits scheme since 1987. He has also been a member of a separate accumulation scheme administered by the Board.

Generally speaking, under the defined benefits scheme, monetary contributions to the scheme are required to be made by each member and by each member’s employer; and the amount of the required contributions depends to a large extent on the amount, from time to time, of the member’s ‘salary’, as that term is defined and used in the Act. Further, under the defined benefits scheme, the amount of a contributor’s retirement benefit can depend significantly on the amount of the contributor’s ‘salary’ in the two years immediately prior to retirement. Frequently, the expression ‘superable salary’ is used to refer to a contributor’s ‘salary’ within the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] VSC 225
Decision Date: 30 April 2021

CaseChat Overview and Summary

The applicant, Marshall, applied to the Supreme Court for leave to appeal a decision of the Victorian Civil and Administrative Tribunal (VCAT). The decision in question related to a dispute concerning public sector superannuation, as outlined under the Emergency Services Superannuation Act 1986 (Vic). The matter came before the Court, which initially proceeded with the arguments presented, focusing solely on the merits of the appeal without raising any questions about VCAT’s jurisdiction. However, during the course of the proceedings, the Court perceived a potential issue regarding VCAT’s authority to make the decision in question.

The primary legal issue before the Court was whether it should address the merits of the appeal or first consider whether VCAT had the jurisdiction to make the decision in question. The Court noted that the application for leave to appeal did not explicitly raise the jurisdictional issue, but the Court, in the interests of ensuring procedural fairness and the proper administration of justice, decided to pause the proceedings to examine the jurisdictional question. The Court recognised the importance of jurisdictional issues being properly considered and decided at the outset of any appeal process.

In light of the perceived jurisdictional concern, the Court determined that it would be appropriate to relist the matter for further argument, allowing both parties to address the jurisdictional issue. This decision was made to ensure that any potential jurisdictional error could be identified and rectified early in the appeal process. The Court emphasised the importance of adhering to jurisdictional requirements to uphold the integrity of the legal system. The final orders of the Court were to relist the matter for further argument on the jurisdictional issue, ensuring that the appeal process would proceed in a manner consistent with legal principles and procedural fairness.

Orders