Phillips v Commissioner for Superannuation

[2005] FCAFC 2

FEDERAL COURT OF AUSTRALIA

Phillips v Commissioner for Superannuation [2005] FCAFC 2

EVIDENCE – appeal – fresh evidence – whether evidence would have assisted in demonstrating an error of law – whether evidence would have produced an opposite result.

PRACTICE & PROCEDURE – where supplementary submissions received after hearing – where submissions were not considered by primary Judge – whether denial of natural justice.

SUPERANNUATION – determination of retirement benefits – issuing of a benefit classification certificate based on answers to questions put in pre-employment medical examination – failure to properly answer questions – whether real and substantial connection between retirement condition and pre-employment medical conditions.

Superannuation Act 1976 (Cth) s 16AC, s 66(2)

Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 followed

Phillips v Commissioner for Superannuation [2004] FCA 28 affirmed
Repatriation Commission v Thompson (1988) 44 FCR 20 followed
Servos v Repatriation Commission (1995) 56 FCR 377 followed
Waterford v The Commonwealth (1987) 163 CLR 54 followed
Commissioner for Superannuation v Benham (1989) 22 FCR 413 followed

GAIL ROSLYNNE PHILLIPS v COMMISSIONER FOR SUPERANNUATION
Q39 of 2004

SPENDER, MADGWICK & FINKELSTEIN JJ
11 FEBRUARY 2005
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q39 of 2004

BETWEEN:	GAIL ROSLYNNE PHILLIPS APPELLANT
AND:	COMMISSIONER FOR SUPERANNUATION RESPONDENT
JUDGES:	SPENDER, MADGWICK & FINKELSTEIN JJ
DATE OF ORDER:	11 FEBRUARY 2005
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.Appellant 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.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q39 of 2004

BETWEEN:	GAIL ROSLYNNE PHILLIPS APPELLANT
AND:	COMMISSIONER FOR SUPERANNUATION RESPONDENT

JUDGES:	SPENDER, MADGWICK & FINKELSTEIN JJ
DATE:	11 FEBRUARY 2005
PLACE:	BRISBANE

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1. This is an appeal under s 44(1) of the Administrative Appeals Act 1975 (‘the AAT Act’) from a single Judge of this Court, given on 30 January 2004 (see Phillips v Commissioner for Superannuation [2004] FCA 28), dismissing an appeal from a decision of the Administrative Appeals Tribunal (‘the Tribunal’) on 8 January 2003.

2. By its decision, the Tribunal varied some aspects of an earlier decision of a delegate of the Commissioner for Superannuation, the respondent, who had reduced the superannuation entitlements of the appellant after her retirement on the ground of invalidity. The effect of the variation was, however, merely to affirm the substance of the respondent’s decision that the appellant’s superannuation entitlement be reduced, pursuant to s 66(2) of the Superannuation Act 1976 (Cth) (‘the Act’).

3. The background to these proceedings is set out in both the Tribunal’s decision and the judgment of the primary Judge.  In essence, in 1983, the appellant commenced employment with the Commonwealth Public Service (‘CPS’), but retired in 1988 on invalidity grounds.  In 1983, the appellant had undertaken a medical examination and completed a questionnaire entitled ‘Statement of Personal Medical History’ in which she indicated that the only disability…