Merlino v CSS Board - [2003] FCA 1490

FEDERAL COURT OF AUSTRALIA
Merlino v CSS Board [2003] FCA 1490
SUPERANNUATION - appeal from determination of Superannuation Complaints Tribunal - superannuation funds -decision to permanently leave employment with the public service - late election - preservation of superannuation benefits - appeal to Federal Court on questions of law - (CTH) Superannuation Act 1976 ss 137, 157 - Factors relevant to s 157 discretion - (CTH) Superannuation (Resolution of Complaints) Act 1993 - Tribunal required to affirm decision if satisfied that it was fair and reasonable in circumstances - meaning of "fair and reasonable" - effect of failure to advise contributing employees of right to elect - circumstances in which time for election should be extended - appellant would not have acted differently even if advised of the right to elect - Form S2A - failure to roll over entitlements a relevant circumstance - no substantial commitment to the public service - appeal dismissed.
Superannuation (Resolution of Complaints) Act 1993 (Cth) ss 14(2), 14AA(1), 37(1), 37(3), 37(4), 37(6) and 46(1)
Superannuation Act 1976 (Cth) ss 80(1), 137(1), 153AR, 153AS and 157(1)
National Mutual Life Association of Australia Ltd v Jevtovic, (unreported, Sundberg J, 8 May 1997) cited
Adkins v The Health Employees Superannuation Trust Australia Ltd (unreported, Heerey J, 15 August 1997) cited
National Mutual Life Association of Australia Ltd v Campbell (2000) 99 FCR 562 cited
Hornsby v Military Superannuation & Benefits Board of Trustees No 1 [2003] FCA 54 cited
Chalk v Commissioner for Superannuation (1994) 50 FCR 150 discussed
Watts v Rake (1960) 108 CLR 138 distinguished
Commissioner for Superannuation v Adams (1997) 25 AAR 324
CHRISTOPHER ROBERT MERLINO v CSS BOARD
N 619 OF 2003
TAMBERLIN J
SYDNEY
16 DECEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N619 OF 2003

BETWEEN:

CHRISTOPHER ROBERT MERLINO
APPELLANT

AND:

CSS BOARD
RESPONDENT

JUDGE:

TAMBERLIN J

DATE OF ORDER:

16 DECEMBER 2003

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
The appeal is dismissed with costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N619 OF 2003

BETWEEN:

CHRISTOPHER ROBERT MERLINO
APPELLANT

AND:

CSS BOARD
RESPONDENT

JUDGE:

TAMBERLIN J

DATE:

16 DECEMBER 2003

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The appellant appeals to the Court under s 46(1) of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (“the SRC Act”), from a determination of the Superannuation Complaints Tribunal (“the Tribunal”) given on 22 March 2003, which affirmed a decision of the respondent (“the Board”) not to accept the late election by the appellant for the preservation of his superannuation rights in the Commonwealth Superannuation Scheme (“the CSS”). The appeal to this Court is limited to questions of law.
background
The appellant joined the Australian Public Service on 11 January 1966, and on 1 July 1976 became an “eligible employee” for the purposes of the Superannuation Act 1976 (Cth) (“the 1976 Act”). He resigned…

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.

Continue reading Merlino v CSS Board

Details

AGLC: Merlino v CSS Board [2003] FCA 1490
Case: [2003] FCA 1490
Decision Date: 16 DECEMBER 2003

CaseChat Overview and Summary

Merlino appeals against the decision of the Superannuation Complaints Tribunal affirming the decision of the CSS Board not to accept his late election for the preservation of his superannuation rights under the Commonwealth Superannuation Scheme. The appeal is limited to questions of law. Merlino joined the Australian Public Service in 1966 and resigned in 1986, receiving a refund of his contributions to the CSS. He did not preserve his superannuation rights at the time of his resignation. Fourteen years later, he purported to make a late election to preserve his superannuation rights, but the CSS Board declined to exercise its discretion under the 1976 Act to accept the late election. The Tribunal affirmed the Board's decision, and Merlino appeals to this Court.

The legal issues in the case revolve around the interpretation and application of the 1976 Act, particularly the provisions regarding the preservation of superannuation rights and the discretion of the CSS Board to accept late elections. The key question is whether the CSS Board's decision not to accept the late election was lawful and whether there were any errors in the Tribunal's determination.

The Court found that the CSS Board had broad discretion under the 1976 Act to decide whether to accept a late election, and that this discretion should be exercised judicially and not arbitrarily or capriciously. The Court noted that the Board had considered the relevant factors and had provided reasons for its decision. The Court held that the Board's decision was not unreasonable or unlawful, and that the Tribunal's determination was correct. The Court found no error in the Tribunal's decision and dismissed the appeal with costs.

The final orders of the Court were that the appeal be dismissed with costs.

Orders

Orders of the court

The appeal is dismissed with costs.

Background

Background to the litigation

The appellant appeals to the Court under s 46(1) of the Superannuation (Resolution of Complaints) Act 1993 (Cth) (“the SRC Act”), from a determination of the Superannuation Complaints Tribunal (“the Tribunal”) given on 22 March 2003, which affirmed a decision of the respondent (“the Board”) not to accept the late election by the appellant for the preservation of his superannuation rights in the Commonwealth Superannuation Scheme (“the CSS”). The appeal to this Court is limited to questions of law.background The appellant joined the Australian Public Service on 11 January 1966, and on 1 July 1976 became an “eligible employee” for the purposes of the Superannuation Act 1976 (Cth) (“the 1976 Act”). He resigned from the public service on 19 September 1986, and thereupon ceased to be an “eligible employee”. At that the time, the appellant said that he was resigning to take up a new job with a higher salary and better prospects. Upon his resignation, the appellant applied for a refund of his contributions to the CSS and was paid $23,180.17. He did not exercise his entitlement under the 1976 Act to preserve his superannuation rights. Fourteen years later, on 25 September 2000, the appellant purported to elect to preserve his superannuation rights under the 1976 Act. The CSS Board has power under s 157(1) of the 1976 Act to treat a late election by a retiree as if it had been made within the period allowed under the 1976 Act, which, in the appellant’s case, expired twenty-one days after the date of his resignation in 1986, pursuant to s 137(1) of the 1976 Act. On 2 May 2001, a delegate of the Board decided not to exercise this discretion. There was a reconsideration, and, on 4 December 2001, the CSS Board decided to affirm the decision of the delegate. On 2 July 2002, the appellant lodged a complaint with the Tribunal seeking review of the decision of the CSS Board. On 22 March 2003, the Tribunal affirmed the Board’s decision. An appeal to this Court was filed on 22 May 2003.The 1976 Act Section 80(1) of the 1976 Act provides that, where a person ceases to be an eligible employee (otherwise than by reason of death) and the person is not entitled to benefit under, relevantly, Division 3 of Part IX, the person is entitled to a lump sum benefit of an amount equal to the person’s accumulated contributions. Section 137(1) of the 1976 Act allows a person who ceases to be an eligible employee in circumstances where no pension is payable to them, to elect, not later than twenty-one days after they cease to be an eligible employee, to have Division 3 of Part IX apply to them so that their person rights in the CSS Scheme are preserved. Section 157(1) of the 1976 Act gives the CSS Board a discretion to treat an election made outside the period prescribed by the 1976 Act as if it had been made within the period allowed – if the Board is satisfied in all the circumstances of the case that it is “desirable” that the election should be recognised.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

TAMBERLIN J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: TAMBERLIN J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N619 OF 2003

BETWEEN:	CHRISTOPHER ROBERT MERLINO APPELLANT
AND:	CSS BOARD RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	16 DECEMBER 2003
WHERE MADE:	SYDNEY

JUDGE:	TAMBERLIN J
DATE:	16 DECEMBER 2003
PLACE:	SYDNEY