Re David Harold Eastman v Commissioner of Superannuation - [1987] FCA 188

Re: DAVID HAROLD EASTMAN
And: COMMISSIONER FOR SUPERANNUATION
No. ACT G62 of 1986
Superannuation

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Neaves(1), Beaumont(1) and Ryan(1) JJ.

CATCHWORDS

Superannuation - Invalidity benefit - "Final annual rate of salary" - Higher duties allowance - Allowance not paid "on a regular basis" in defined sense - Whether allowance part of salary for superannuation purposes.

Superannuation Act 1976 (Cth), ss.3(1), 5(1), 66(2), 70(2)

Superannuation (Salary) Regulations, regs 4, 5, 6, 7

Public Service Act 1922 (Cth), s.51A

Public Service Regulations, regs 87, 116

Commissioner for Superannuation v. Carpenter (1983) 77 FLR 224; 48 ALR 230 distinguished

HEARING

CANBERRA

#DATE 10:6:1987

Counsel and Solicitors for Applicant: Applicant appeared in person

Counsel and Solicitors for Respondent: Mr. A. Robertson instructed by Australian Government Solicitor

ORDER

The appeal be dismissed.

The applicant 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

JUDGE1

The applicant, a former officer of the Australian Public Service, is entitled to an invalidity pension under the relevant provisions of the Superannuation Act 1976 ("the Act"). A dispute has arisen as to the correct calculation of that entitlement. The amount of his entitlement is calculated by reference to his "final annual rate of salary" and a question has arisen as to the meaning of that phrase and its application in the present context. The applicant applied to the Administrative Appeals Tribunal for review of the Commissioner's decision on the question, the Tribunal affirmed that decision and the applicant now appeals to the Court on the question of law thus arising pursuant to s.44(1) of the Administrative Appeals Tribunal Act 1975.

On and from 11 October 1973, the applicant occupied the office of Clerk (Class 9) within the Service. He occupied that office until his retirement which took effect on 30 June 1977. During his period of service, the applicant was directed to perform temporarily the duties of a Clerk (Class 11) in a position designated Chief Finance Officer Grade 11 (CFO 11). For this he was paid a "higher duties allowance". The periods in which he so acted were as follows:

17 January 1974 - 4 February 1974 24 May 1974 - 12 June 1974 19 August 1974 - 11 October 1974 28 October 1974 - 8 November 1974 1 April 1975 - 23 April 1975 25 August 1975 - 29 August 1975 7 November 1975 - 7 October 1976 6 December 1976 - 17 December 1976 12 January 1977 - 3 March 1977

Thus, between 1 July 1976 and 30 June 1977, his last year of service, the applicant acted on higher duties during the following periods:

1 July 1976 - 7 October 1976 6 December 1976 - 17 December 1976 12 January 1977 - 3 March 1977

The material before the Tribunal showed that the applicant was, during the last year of his service, paid at the following annual rates:

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 Re David Harold Eastman v Commissioner of Superannuation

Details

AGLC: Re David Harold Eastman v Commissioner of Superannuation [1987] FCA 292
Case: [1987] FCA 188
Decision Date: 10 June 1987

CaseChat Overview and Summary

The case of Re David Harold Eastman v Commissioner of Superannuation concerns a dispute between the applicant, David Harold Eastman, and the Commissioner of Superannuation. The primary issue revolves around the calculation of Eastman's superannuation benefits, specifically the determination of his "final annual rate of salary" for the purposes of assessing his invalidity benefit. The crux of the dispute is whether a particular allowance, known as the Higher Duties Allowance, should be included in the calculation of Eastman's salary for superannuation purposes. The Federal Court was tasked with deciding whether this allowance, which was not paid on a regular basis, should be considered part of the salary for superannuation contributions.

The court examined the statutory provisions governing superannuation benefits and the definition of "salary" for this purpose. It had to interpret whether the Higher Duties Allowance, which was not paid on a regular basis as defined in the law, should be included in the salary for superannuation. The court considered whether the allowance should be considered part of the salary for superannuation purposes, given its nature and the frequency of its payment. The court had to balance the statutory definitions and the legislative intent behind the superannuation scheme.

In its decision, the court found that the Higher Duties Allowance did not meet the statutory criteria for being considered part of Eastman's salary for superannuation purposes. The allowance was not paid on a regular basis, as required by the law. Consequently, it could not be included in the calculation of the "final annual rate of salary". The court dismissed the appeal, upholding the Commissioner's decision. The court also ordered that Eastman pay the Commissioner's costs of the appeal. The final orders were made in accordance with Order 36 of the Federal Court Rules.

Orders

Orders of the court

The appeal be dismissed.

The applicant 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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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