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Marshall v Emergency Services Superannuation Board (No 2)

Marshall v Emergency Services Superannuation Board (No 2)

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Case Copied 11 March 2022 59 min read

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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
v
EMERGENCY SERVICES SUPERANNUATION BOARD	First Respondent
- and -
UNITED FIREFIGHTERS’ UNION OF AUSTRALIA	Second Respondent

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JUDGE:	Cavanough J
WHERE HELD:	Melbourne
DATES OF HEARING:	28 May 2020, 27 May 2021
DATE OF JUDGMENT:	11 March 2022
CASE MAY BE CITED AS:	Marshall v Emergency Services Superannuation Board & Anor (No 2)
MEDIUM NEUTRAL CITATION:	[2022] VSC 122 – First revision 11 March 2022

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ADMINISTRATIVE LAW – Statutory interpretation – Extent of jurisdiction of Victorian Civil and Administrative Tribunal (‘VCAT’) in relation to decisions of the Emergency Services Superannuation Board – Whether decisions of the Board must be reconsidered by the Board before VCAT may review them – Held that VCAT’s jurisdiction is not limited in that way – Whether VCAT misinterpreted the definition of ‘salary’ in the Emergency Services Superannuation Act 1986 – Held that VCAT did misinterpret it – Matter to be remitted to VCAT for reconsideration accordingly – In those circumstances inappropriate to rule finally on whether VCAT otherwise misapplied the statutory power to ‘approve’ salary for superannuation purposes – Likewise inappropriate to rule finally on whether the Board or VCAT was bound by certain statements and conduct of the Board’s staff when later assessing the contributor’s ‘salary’ for superannuation purposes – Matter remitted to VCAT for reconsideration – Emergency Services Superannuation Act 1986 (Vic) ss 3(1), 4(1E), 6, 7, 20, 20A, 20AA, 20C, 20D, 20F(13), 23(4), 23(6) – Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 3, 4, 148.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	M Pearce SC with D Langmead	Davies Lawyers
For the First Respondent	S Ure	Hall & Wilcox
For the Second Respondent	R Kenzie QC with T Dixon	Mills Oakley

HIS HONOUR:

Introduction: VCAT’s jurisdiction

On 30 April 2021 I delivered a preliminary judgment in this matter.[1] That judgment should be read as one with this judgment. In the preliminary judgment I expressed concern that the applications for review made to the Victorian Civil and Administrative Tribunal (‘VCAT’) by Mr Marshall and by the Union respectively and VCAT’s decision on those applications for review,[2] being the matters out of which this application for leave to appeal arises, may have fallen outside the jurisdiction of VCAT. I described the reasons for my concern. The main question was whether the jurisdiction of the Board under s 23(6) of the Emergency Services Superannuation Act 1986 (‘ESS Act’) was limited to the review of decisions of the Emergency Services Superannuation Board (‘the Board’) that had been reconsidered by the Board under s 23(4) of the ESS Act. The terms of s 23 of the ESS Act are set out in the preliminary judgment.[3]
[1]Marshall v Emergency Services Superannuation Board & Anor [2021] VSC 225.
[2]United Firefighters’ Union of Australia & Marshall v Emergency Services Superannuation Board (Review and Regulation) [2019] VCAT 594 (‘VCAT’s…

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: [2022] VSC 122
Decision Date: 11 March 2022

CaseChat Overview and Summary

The respondents in this case, Marshall, sought judicial review of decisions of the Emergency Services Superannuation Board, a statutory body under the Emergency Services Superannuation Act 1986, which were the subject of review by the Victorian Civil and Administrative Tribunal (VCAT). The dispute centred on the correct interpretation of the Act, particularly concerning the extent of VCAT's jurisdiction over decisions made by the Board and the proper definition of ‘salary’ for superannuation purposes. The Supreme Court of Victoria was the forum for the judicial review.

The primary legal issues before the court were whether VCAT had correctly exercised its jurisdiction in reviewing the Board's decisions and whether VCAT had accurately interpreted the definition of ‘salary’ as it applied to superannuation calculations. The court also considered whether VCAT had misinterpreted the Act in its review process and whether certain statements and conduct by Board staff should have been binding on VCAT.

The court found that VCAT did not need to require the Board to reconsider its decisions before undertaking its own review, affirming VCAT's jurisdiction. However, the court determined that VCAT had indeed misinterpreted the definition of ‘salary’ in the Act, necessitating a reevaluation of the matter by VCAT. The court refrained from making final determinations on whether VCAT misapplied the statutory power to approve salary for superannuation purposes or whether certain Board staff statements and conduct should have been binding on VCAT, as these matters required reconsideration by VCAT in light of the statutory misinterpretation.

The court's final orders were to remit the matter back to VCAT for reconsideration in accordance with the correct interpretation of the statutory definition of ‘salary’ and to ensure that all relevant considerations were appropriately applied.

Orders