Retirements Benefits Fund Board v Elmore
[2014] TASFC 1
•30 January 2014
[2014] TASFC 1
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: Retirements Benefits Fund Board v Elmore [2014] TASFC 1
PARTIES: RETIREMENT BENEFITS FUND BOARD
v
ELMORE, Geoffrey Frederick
FILE NO/S: 551/2013
JUDGMENT
APPEALED FROM: Retirement Benefits Fund Board v Elmore
[2013] TASSC 22
DELIVERED ON: 30 January 2014
DELIVERED AT: Hobart
HEARING DATE: 8 October 2013
JUDGMENT OF: Tennent, Porter and Estcourt JJ
CATCHWORDS:
Superannuation – Benefits – Matters affecting entitlement to and payment of – Other matters – Temporary employee – Right to become contributor to scheme if certificate issued by employer stating likely to remain in employment for at least three years – Certificate to be issued if it appeared employee will be continuously employed for the necessary period – Guarantee or near certainty of employment for period not necessary – Likelihood of employment for period sufficient.
Retirement Benefits Act 1982 (Tas), s5.
Aust Dig Superannuation [1028]
Superannuation - Benefits – Matters affecting entitlement to and payment of – Other matters – Power of Fund to permit person to exercise lost right, privilege or benefit where lost otherwise than through person's own fault – Temporary employee – Right to become contributor to scheme if certificate issued by employer stating likely to remain in employment for at least three years – Certificate would not have been issued because of wrong view of degree of likelihood of future employment required under the provision – Finding that employee was entitled to certificate on proper construction of provision – Employee unaware of right to elect to join scheme if issued a certificate – Whether employee lost a right, privilege or benefit.
Retirement Benefits Regulations 2005 (Tas), regs123, 127.
Aust Dig Superannuation [1028]
REPRESENTATION:
Counsel:
Appellant: A J Abbott SC and R Webster
Respondent: C F McKenzie
Solicitors:
Appellant: M + K dobson mitchell allport
Respondent: McLean McKenzie & Topfer
Judgment Number: [2014] TASFC 1
Number of paragraphs: 166
Serial No 1/2014
File No 551/2013
RETIREMENT BENEFITS FUND BOARD v
GEOFFREY FREDERICK ELMORE
REASONS FOR JUDGMENT FULL COURT
TENNENT J
PORTER J
ESTCOURT J (Dissenting)
30 January 2014
Order of the Court
Appeal dismissed.
Serial No 1/2014
File No 551/2013
RETIREMENT BENEFITS FUND BOARD v
GEOFFREY FREDERICK ELMORE
REASONS FOR JUDGMENT FULL COURT
TENNENT J
30 January 2014
I have had the benefit of reading in draft form the reasons for judgment of Porter J and Estcourt J.
As to grounds 1, 2 and 3 of this appeal, while their Honours' reasons are expressed in different terms, each of Porter J and Estcourt J have determined that these grounds are not made out. I respectfully agree with that conclusion.
Prior to the hearing of the appeal, the appellant abandoned ground 8. At the commencement of the hearing, he indicated that, in the event that grounds 1, 2 and 3 did not succeed, he would abandon grounds 4, 6 and 7. That leaves for consideration ground 5, which relates to the manner in which the learned primary judge interpreted the Retirement Benefits Regulations 2005 ("the Regulations"), reg123.
Ground 5 is in the following terms:
"The learned hearing judge erred in law by interpreting reg123 of the Regulations too widely, and by failing to determine the content of the phrase 'right, privilege or benefit' before determining without analysis that the Respondent had lost a right within the meaning of that phrase, namely a 'right' to a sub-s5(1) certificate, when in fact the Respondent had never sought such a certificate and never had any right to, nor might have obtained, any such certificate."
The learned primary judge dealt with the concept of "Loss of right, privilege or benefit" at pars[29] – [33] of his judgment. He said:
"29 Mr Elmore can succeed in this case only if he satisfies reg123(1)(a) of the 2005 regulations. That is to say, he can succeed only if he, 'otherwise than through his ... own fault, lost or ceased to be entitled to a right, privilege or benefit under ... the Retirement Benefits Fund Act 1982 ... to which he ... was otherwise entitled or might have obtained'. He contends that nobody told him anything about any possibility of him joining the relevant scheme while he was a temporary employee, and that, as a result, he lost the right to obtain a s5 certificate and also the right, once he had that certificate, to elect pursuant to s5(1) to become a contributor to the relevant scheme.
30 The word 'right' can have a wide variety of meanings. See In re K D [1988] 1 AC 806 at 825. The 2005 regulations, like the 1982 Act, constitute beneficial legislation that is intended to benefit employees and former employees. Regulation 123(1)(a) should therefore be given a beneficial interpretation, and not a narrow or restrictive interpretation.
31 In my view s5(2) of the 1982 Act did not confer a discretion on the 'appropriate authority' to issue or refuse certificates. It required that authority to make a value judgment as to whether it appeared that the person in question would be continuously employed in a temporary capacity for the three years next ensuing, or until that person became a permanent employee. If that did not appear to be the situation then, because of the words 'and only if' in s5(2), the 'appropriate authority' had no power to issue a certificate. If that did appear to be the situation, the section gave the 'appropriate authority' no choice because it began, 'A certificate shall be issued ...'. If, in a particular case, only one view of what appeared to be going to happen was reasonably open to the 'appropriate authority', then that authority was obliged to make a determination in favour of the relevant employee and issue a certificate. For the reasons stated above, I consider that this was such a case. If the 'appropriate authority' had been asked to issue a certificate, it would have been obliged to consider the available evidence, reach the inevitable conclusion, and issue the certificate. In those circumstances, I consider that Mr Elmore had a right to obtain a s5 certificate.
32 Counsel for the Board submitted that Mr Elmore did not ever have the right to become a contributor to the relevant scheme because he did not ever obtain a s5 certificate. In one sense, it could be said that Mr Elmore had the right to do two things: first, to obtain a s5 certificate; and then, only after he obtained the certificate, to elect to become a contributor. Giving the regulation a beneficial interpretation, I consider that, Mr Elmore should be regarded as at all material times, having had the right to take those two steps. In my view such an interpretation is consistent with the language of reg123(1)(a), and should be preferred to the interpretation of the word 'right' urged upon me by counsel for the Board.
33 Thus Mr Elmore at all material times had the right to become a contributor by taking the two necessary steps. That was a right to which he was entitled because of his prospects for continuous further employment and the provisions of s5."
It is true to say that his Honour did not, apart from a reference to In re KD in par[30], expose any detailed analysis of what the phrase "right, privilege or benefit" in the context of reg123 might mean. However, that does not necessarily mean that his conclusion was ultimately wrong.
At pars[91] – [110] of his draft reasons, Estcourt J accurately and fairly summarised the arguments put by counsel as to ground 5. I do not repeat those arguments.
Ground 5 of the appeal
Regulation 123 provides that, if the Retirement Benefits Fund Board is satisfied that a person has, otherwise than through his own fault, lost or ceased to be entitled to a right, privilege or benefit under the regulations or the Retirement Benefits Act 1982 ("the Act") to which he was otherwise entitled or might have obtained, and it is equitable they should be able to enjoy that right, privilege or benefit, it may permit the person to exercise that right, or grant the privilege or benefit.
At pars[50] – [52] of his draft reasons, Porter J canvassed the meaning of the words "right", "privilege" and "benefit". As he noted, there did not appear to be a difference between counsel as to the meanings of those words. There was also no dispute that the nature of the legislation under consideration was remedial or beneficial. As Porter J said at par[49] of his reasons, as remedial legislation the regulation should be interpreted in such a way which gives the fullest relief which a fair meaning of the language would allow. My conclusions have been reached against the background of those meanings and the approach to interpretation of beneficial or remedial legislation
What was it that the respondent lost, if anything? The respondent was a temporary employee from March 1991 until June 1994 when he became permanent. At the end of the first 12 months of his temporary employment, he would have been entitled to pursue the process provided for in the Act, s5. His entitlement to do so was one not given to everyone but only to those who, in the first instance, were temporary employees of 12 months' standing. Had he chosen to take up that entitlement, that is to pursue the process, the process required that there be a certificate issued stating that he was likely to remain in employment for at least three years. If that certificate issued, the respondent could then make his election, and it would be put into effect. The Act and Regulations are silent as to how the relevant certificate is to come into existence. It must, in my view, be inferred it is as a result of a temporary employee, planning to make an election, applying for it.
The issue of a certificate, once applied for, was not guaranteed. The issuing authority was required to make a judgment as to what was likely to happen. The learned primary judge canvassed the evidence about the likelihood of a certificate being granted had it been applied for by the respondent. He said at pars[27] – [28]:
"27 … In the light of that evidence, particularly the passages that I have quoted from the statements of Mr McLaughlin and Mr Willie, I am satisfied that, at all times from 11 March 1992 to 30 June 1994 inclusive, it was apparent that Mr Elmore would, in the words of s5(2), 'be continuously employed in a temporary capacity for the 3 years next ensuing' or until he became a permanent employee.
28 I am satisfied that no other conclusion would have been reasonably open to the 'appropriate authority' if Mr Elmore had sought a s5 certificate at any time during that period. The evidence before me very strongly suggests that, if Mr Elmore had in fact sought such a certificate during that period, the authorities would have taken a very different approach to the interpretation of the legislation from my approach, and he would have been refused a certificate. That is not to the point. Throughout the relevant period he satisfied the requirements of s5(2); he was entitled to a certificate under s5; and with such a certificate he would have been entitled to elect pursuant to s5(1) to become a contributor to the relevant scheme."
The learned primary judge characterized what the respondent lost as the right to apply for a certificate and a right to then make an election.
What, in my view, the respondent lost was the ability to take advantage of the process provided for in s5. Blow CJ characterized involvement in that process as being rights to apply for a certificate, and a right to then elect. Whether it be characterized as a right, benefit or privilege is not relevant. If what was lost amounted to any one of a right, benefit or privilege, as long as it was a right, benefit or privilege under the Act and otherwise satisfied the requirements of reg123, then the regulation could operate to grant relief.
There was some argument on this appeal as to whether reg123 could operate to relieve in cases where a mere loss of opportunity to do something occurred. I agree that it is unlikely that it does. It may be that some would describe the loss of the ability to take part in the process provided for in s5 as the loss of an opportunity. However, the distinction between an opportunity, and, most particularly a benefit or privilege, is a fine one. In my view, what s5 provided, was a benefit to certain employees, that is it gave them access to a process by which they could change their status as far as superannuation was concerned. It is difficult, in my view, having regard to the meaning of the terms right, benefit and privilege canvassed by Porter J, to not conclude that, at the very least, the ability to take part in the process outlined in s5 was a benefit or privilege which the respondent was entitled to take advantage of if he wished. It was a benefit or privilege that he lost, effectively because he did not know it existed.
Given the factual findings made by Blow CJ to the effect that the respondent lost his ability to seek a certificate and make an election through no fault of his own, and that it was equitable that the respondent should be allowed to have the enjoyment of the rights or benefits found to have been lost, reg123 could operate, as his Honour found, to give relief. I would also dismiss the appeal.
File No 551/2013
RETIREMENT BENEFITS FUND BOARD v
GEOFFREY FREDERICK ELMORE
REASONS FOR JUDGMENT FULL COURT
PORTER J
30 January 2014
Introduction
This is an appeal from a decision of Blow CJ setting aside a determination of the Retirement Benefits Fund Board (the Board), and making consequential orders. Under the Retirement Benefits Regulations 2005 (the Regulations) the respondent, Mr Elmore, had sought entitlements claimed to have been lost. The Board refused his application. Pursuant to the Regulations, the respondent required the Board to apply to the Supreme Court for a declaration in respect of its decision. In the proceedings before the primary judge there were issues about the proper construction of s5 of the now repealed Retirement Benefits Act 1982 (the Act), and of reg123 of the Regulations. Those two issues are at the centre of this appeal.
Although a more detailed background is set out in the reasons for judgment of Estcourt J, a draft of which I have had the advantage of reading, it is convenient if I summarise it here and include references to the two contentious provisions. Although I agree with his Honour on one issue in the appeal, I have, with respect, come to a different conclusion about the other, and in my view the appeal should be dismissed.
On 11 March 1991, the respondent started work as a teacher at the Launceston College of TAFE. He was employed in a temporary full-time position. His employment was made permanent from 30 June 1994 and he became a contributor to the RBF contributory superannuation scheme with effect from that date. Basically, he remains employed in the same position.
In October 2011, the respondent applied to the Board to exercise its power to reinstate lost rights. The Board's power to reinstate lost rights is found in reg123 of the Regulations. In effect, he sought the benefits that he would have received if he had joined the contributory scheme from 11 March 1992, being one year after his temporary employment commenced.
The respondent relied on s5 of the Act. (This had existed in a similar form in the Retirement Benefits Act 1970, having been inserted in 1974.) The relevant parts of the section are as follows:
"5 — (1) A person who is not an employee, but is employed in a temporary capacity, may elect to become a contributor if during the past 12 months he has been continuously employed in a temporary capacity and a certificate is issued by the appropriate authority, in accordance with this section, stating that he is likely to remain in employment for at least 3 years.
(2) A certificate shall be issued for the purposes of subsection (1) if, and only if, it appears that the person to whom it relates will be continuously employed in a temporary capacity for the 3 years next ensuing or until he becomes an employee otherwise than by virtue of this section.
(3) An election under subsection (1) shall be by notice in writing to the Board accompanied by the certificate referred to in that subsection.
(4) On the making by a person of an election under this section, he shall be deemed to become an employee within the meaning of this Act and to remain such an employee so long as he is employed in a temporary capacity or as an employee."
The basis of the respondent's application was that neither he nor his "employer" were made aware that the right under s5 "existed or could be established on submission of relevant evidence that ongoing employment was likely (as opposed to guaranteed), so that [he] was denied the opportunity to obtain the necessary evidence and apply for the opportunity to join the contributory scheme."
Relevantly, reg123 of the Regulations is as follows:
"123 Power of Board to reinstate lost rights
(1) If the Board is satisfied, after such inquiry as it thinks fit, that —
(a)a person has, otherwise than through his or her own fault, lost or ceased to be entitled to a right, privilege or benefit under —
(i) these regulations; or
(ii) the Retirement Benefits Act 1982; or
(iii) the former regulations —
to which he or she was otherwise entitled or might have obtained; and
(b)it is equitable that he or she should be allowed to have the enjoyment of that right, privilege or benefit —
the Board, with the approval of the Minister, may permit that person to exercise the right or grant to him or her the privilege or benefit, notwithstanding that the time prescribed for doing any act in respect of the entitlement may have expired."
On 21 December 2011, the Board refused the respondent's application, and following a request by the respondent as provided for in the Regulations, on 15 February the Board applied to the Court for a declaration. The nature of the proceedings before the primary judge was that of a review of the Board's determination; the question was whether it was the correct or preferable one on the material before the Court. Blow CJ set aside the Board's determination, and remitted the matter to it for reconsideration in accordance with certain directions, the effect of which was to permit the respondent to exercise his right as a contributor from the appropriate date in 1992.
In this appeal, the Board does not challenge any of the factual findings made by the primary judge. Of the original eight grounds, four were pursued. Grounds 1, 2 and 3 relate to the construction of s5 of the Act. The essential point is what degree of likelihood of continued employment must "appear" to the authority before a certificate under s5(1) could be issued.
Ground 5 relates to reg123 of the Regulations. The debate concerns sub-reg(1)(a) and the meaning of the loss of a "right, privilege or benefit … to which [the person] was otherwise entitled or might have obtained." Senior counsel for the appellant accepted at the outset that if the appellant did not succeed on the s5 point, the ground 5 issue was "just alive" and that it may well fail in the appeal. Although accepting that difficulties were involved, the ground was pursued.
The decision of the primary judge
The relevant aspects of the primary judge's decision are as follows. His Honour considered material from persons of responsibility at TAFE during the relevant period. Those persons included one who had successively held the identical but differently named positions of Principal of the Launceston College of TAFE, and Director of the Launceston Institute of TAFE. Another person had been the Associate Director (Programs) of Automotive Services. Each man said that managers and supervisors had been clearly instructed that no temporary employee was to be told that continued employment was, or could be, guaranteed, whether full-time or otherwise. Both expressed the view that had he been asked at the relevant time as to whether continuing employment for the next three years for teachers in the respondent's position was likely, he would have said that it was. His Honour noted that these assertions were apparently not in dispute.
The primary judge concluded that, at least as a general rule, it was considered by authorities that a s5 certificate should not be issued to a temporary employee unless that person had "guaranteed employment for a further continuous period of three years or more". His Honour considered s5 of the Act and held that it required the appropriate authority to determine what appeared to be likely to happen. If it appeared that the person would be continuously employed in a temporary capacity for at least three years, then the requirements of s5(2) were satisfied, and the appropriate authority was required to issue a certificate even if the employee had no contractual right to, or promise, or "guarantee" of three further years' continuous employment.
On the evidence, his Honour was satisfied that at all times from 11 March 1992 to 30 June 1994 it was apparent that the respondent would, "in the words of s5(2), 'be continuously employed in a temporary capacity for the 3 years next ensuing', or until he became a permanent employee", and that no other conclusion would have been reasonably open to the appropriate authority. As I have noted, the appellant does not challenge these findings. The appellant does not argue that the views about the likelihood of continuous employment expressed by the TAFE personnel ought not to be attributed to the relevant "authority".
His Honour went on to say that at all material times, the respondent had the right to become a contributor by obtaining a s5 certificate, and then electing to become a contributor. His Honour continued: "That was a right to which he was entitled because of his prospects for continuous further employment and the provisions of s5".
Next, the primary judge determined that the right was lost otherwise than through the respondent's own fault. His Honour found that the respondent did not receive a letter dated 22 February 1991 from the State Superannuation Office advising of the s5 entitlement. He went on to find that even if the letter were to have been received, it misrepresented the situation because it referred to the need for a guarantee of future employment. The means by which the respondent is said to have suffered loss is also not the subject of the appeal. Finally, his Honour held that it necessarily followed that it was equitable that the respondent should be allowed to have the enjoyment of the lost right.
Section 5 of the Act
I will set out in full the passage of the primary judge's reasons in which he deals with the construction of s5, (reference omitted):
"[24] A certificate under s5 was required by s5(1) to state that the employee in question was 'likely' to remain in employment for at least three years. That requirement must be taken into account for the purpose of interpreting s5(2). That subsection used the words 'appears' and 'will be'. The subsection required a s5 certificate to be issued 'if, and only if, it appears that the person to whom it relates will be continuously employed in a temporary capacity for the 3 years next ensuing …'.
[25] Read in context, I think s5(2) should be not interpreted as requiring a certificate to be issued only when a person had a contractual right to three further years' continuous temporary employment, or some sort of 'guarantee' of three further years' continuous temporary employment. Bearing in mind that s5(1) required the certificate to state that a certain state of affairs was 'likely', I think that s5(2) required the 'appropriate authority' to determine what appeared to be likely to happen. If it was likely that a particular employee, employed in a temporary capacity, was going to remain in employment continuously for at least another three years, in the sense that it appeared that that person would be continuously employed in a temporary capacity for at least that long, then the requirements of s5(2) were satisfied, and the appropriate authority was required to issue a certificate, even if the employee had no contractual right to, or promise or 'guarantee' of, three further years' continuous employment.
[26] The 1982 Act was beneficial legislation, enacted for the benefit of employees. Its purpose was to make financial provision for employees and their families. The interpretation of s5(1) and (2) that I have adopted is consistent with the principle that, if there is any ambiguity, such legislation should be construed beneficially and not given a narrow or restrictive interpretation: ... It is also consistent with the requirement of the Acts Interpretation Act 1931, s8A(1), that an interpretation that promotes the purpose or object of the Act is to be preferred to one that does not."
Grounds 1, 2, and 3 are set out in full in the judgment of Estcourt J and there is no need for me to repeat them. To underpin its arguments, the appellant relies on a number of principles of statutory construction. These are uncontentious, but it is suggested that the primary judge failed to give full effect to them. By reference to the summary of Allsop P in Wilson v State Rail Authority of New South Wales (2010) 78 NSWLR 704 at 707 – 710 [12] – [14], and the cases cited in that passage, the appellant highlights the following:
· the primary object of the statutory construction is to construe the relevant provisions so that it is consistent with the language and purpose of all the provisions of the statute;
· legislation must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals;
· where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions, while maintaining unity;
· a court must strive to give meaning to every word of the provision.
Before noting the appellant's arguments, I will set out the relevant parts of s6 of the Act which forms part of them. Section 6 first appeared in the 1982 Act as originally enacted.
"6 — (1) A person who is not an employee may elect under this section be become a contributor if he is —
(a) a person who has been employed continuously in a temporary capacity (whether before or after the first commencement day) during the 4 years immediately preceding the date on which he so elects and who is unable to obtain a certificate referred to in section 5 (1);
(b) a person employed under a prescribed contract of employment; or
(c) employed as a permanent part-time employee.
(2) For the purposes of subsection (1) (a), a person shall be deemed to be employed continuously in a temporary capacity if he is employed in such circumstances that, had he been so employed in a permanent capacity, he would have been an employee within the meaning of this Act."
In short summary, the appellant's arguments are as follows:
· the conditions governing the issue of the certificate are not set out under s5(1), but under s5(2);
· both provisions must be given effect, in their context, to produce a harmonious outcome consistent with the statutory scheme;
· the governing phrase in s5(2) is "will be continuously employed", which, when given its ordinary meaning, imports certainty, or near certainty, of ongoing employment for the three year period;
· that the phrase "will be" is used rather than words such as "may be" or "might be", is a clear reference to certainty, or near certainty;
· it was only if it appeared to the appropriate authority that the person will be continuously employed, in that sense of certainty, or near certainty, which created an obligation to issue the certificate;
· such a construction of s5 is consistent with the operation of s6, in that a certificate under s5 could issue on a prospective basis, whereas an entitlement under s6 was assessed retrospectively;
· in the case of each section, the right to join turned on four years' continuous service, and the enactment of s6 supported the view that certificates under s5 were only to be issued if the employee was, in practical terms, guaranteed employment for at least the next three years.
In my view, the grounds of appeal which relate to this point are not made out. Like Estcourt J, I agree with the primary judge's reasons, and with his conclusion. The starting point is the wording of s5(1). The subsection provides for an election where the person has a certificate "stating that he is likely to remain in employment for at least 3 years". To be a certificate within the meaning of the provision, that is what it must state. That requirement has to govern what it is which must appear to the authority as referred to in subs(2).
Ignoring for the moment the meaning of the word "appear", it is incongruous to suggest that if it appears that the person is guaranteed future employment (or even a very high degree of certainty of that employment), it leads to a certification of "likelihood". (In strict terms, it is not necessary to decide what is meant by the word "likely" in s5(1). I take the view, however, that it has its more usual meaning of "probable"; that is, more probable than not, rather than a real chance or possibility as distinct from a fanciful chance or mere possibility.)
Before an authority can issue a certificate, it must "appear" that the person will be continuously employed. A statutory requirement that a matter "appear" to a body or official before action can be taken or a discretion exercised is not uncommon. Generally, it means that an opinion needs to be formed about the subject matter: Robinson v Sunderland Corporation [1899] 1 QB 751 at 757; Smith v Browne [1974] VR 842 at 847. The word "appear" in this context was discussed by Ormiston, Coldrey and O'Bryan JJ in Cornall v AB (A Solicitor) [1995] 1 VR 372, although in that case the statute specifically required the formation of an opinion.
At 392, their Honours said that the word "appear" is a "chameleon-like word and much abused, and so it is in its actual context that one must look for its true meaning." The Court considered a number of dictionary meanings referred to by the judge at first instance. Those meanings taken from the Shorter Oxford English Dictionary were "to be in one's opinion; seem", and "to seem as distinguished from to be; to be to the superficial observer". Their Honours went on to note the more detailed definition in the Oxford Dictionary (2nd ed): "To be to the mind, or in one's opinion; to be taken as, to seem".
The Court held that the requirement for the formation of an opinion that there "appears to have been misconduct" meant no more than a prima facie case needed to be established. Their Honours said:
"Here [the Secretary] must form an opinion but only an opinion that there 'appears' to have been misconduct etc. In other words the required opinion … is merely one that there is an appearance of misconduct …".
This case illustrates the implications of the use of the device of requiring a matter to "appear". It is clear that s5 involves the formation of a subjective opinion about the required continuous employment in the sense of it "appearing", rather than requiring affirmative satisfaction about the matter. That the required continuous employment must "appear" is generally not consistent with the construction argued for by the appellant. When put alongside "will be continuously employed", the scheme can be seen as one more consistent with the need for the probability of such employment rather than the certainty of it.
Although it may be of no great import, at this point I would also mention a comment of the Court (Burchett, Drummond and Sackville JJ) in Mulcahy v Hydro-Electric Commission (1998) 85 FCR 248, the first instance decision in which I will later discuss. The point was not an issue, but the comment reveals the Court's impression about the operation of the provision. The Court reviewed various provisions of the Superannuation Act 1938 (Tas) and the Retirement Benefits Act 1970 (Tas). At 254 – 255, their Honours considered s2AA of the 1970 Act which, as noted above, was in the same terms as s5. Although setting out subss(1), (3), (4) and (5) but not subs(2), the Court said at 255:
"It will be seen that s 2AA plainly contemplated that a person could be employed in a temporary capacity, yet be likely to remain in employment for at least three years. The section also contemplated that some persons employed in a temporary capacity would remain employed until their retirement." [My emphasis.]
I do not accept the appellant's argument concerning the effect of s6. I do not accept that s5 operates prospectively in the same way as s6 operates retrospectively. I think it is clear that s6 simply caters for those who have been continuously employed for the required period, but who have been unable to make it prospectively appear to the authority that their temporary employment is likely to continue for the required period. That it does so does not say anything about the degree of likelihood which needs to be apparent under s5.
The point can be decided against the appellant by construing the words of s5 in their context, and having regard to their apparent purpose. I think that the ordinary meaning of the provision's wording is not the one argued for by the appellant, and there is no justification to give it that meaning. To the extent that it is necessary, some confirmation can be gained from the Minister's second reading speech on the introduction of the Retirement Benefits Act 1974, which inserted s5. The Minister said, "Where a temporary officer has completed one year's continuous service, he may apply for admission as a contributor to the Retirement Benefits Fund. If the employing authority is satisfied that the person concerned is likely to remain in employment for a further three years, … he would be admitted as a contributor." [My emphasis.]
Further, the clause notes for the Retirement Benefits Bill 1982 say about cl 6 (s5):
"This Clause makes provision for contribution by a person who is not an employee, but who is engaged in a temporary capacity under such circumstances that he would be an employee if his employment were permanent.
Provided the applicant has been employed continuously for twelve months prior to his application, and provided his employing authority certifies the probability of his continued engagement for a further three years, the applicant will be deemed to be an employee upon his making a written election to contribute to the Fund." [My emphasis.]
Regulation 123 of the Retirement Benefits Regulations 2005
I have already outlined the approach taken by the primary judge but will set out more fully what his Honour said about the approach to reg123, and the resolution of the issue. In pars[30] and [31], his Honour observed that the word "right" can have a variety of meanings, but that the Regulations, like the Act, constitute beneficial legislation intended to benefit employees and former employees, and as such should be given a beneficial interpretation, and not a narrow or restrictive one.
After noting that the wording of s5(2) compelled the issue of a certificate if the appropriate authority made a value judgment that it appeared the person in question would be continuously employed in a temporary capacity for the three years next ensuing, or until becoming a permanent employee, his Honour continued:
"31 … If, in a particular case, only one view of what appeared to be going to happen was reasonably open to the 'appropriate authority', then that authority was obliged to make a determination in favour of the relevant employee and issue a certificate. For the reasons stated above, I consider that this was such a case. If the 'appropriate authority' had been asked to issue a certificate, it would have been obliged to consider the available evidence, reach the inevitable conclusion, and issue the certificate. In those circumstances, I consider that Mr Elmore had a right to obtain a s5 certificate.
32 Counsel for the Board submitted that Mr Elmore did not ever have the right to become a contributor to the relevant scheme because he did not ever obtain a s5 certificate. In one sense, it could be said that Mr Elmore had the right to do two things: first, to obtain a s5 certificate; and then, only after he obtained the certificate, to elect to become a contributor. Giving the regulation a beneficial interpretation, I consider that, Mr Elmore should be regarded as at all material times, having had the right to take those two steps. In my view such an interpretation is consistent with the language of reg123(1)(a), and should be preferred to the interpretation of the word 'right' urged upon me by counsel for the Board.
33 Thus Mr Elmore at all material times had the right to become a contributor by taking the two necessary steps. That was a right to which he was entitled because of his prospects for continuous further employment and the provisions of s5."
The appellant pursues ground 5 of the appeal. It is set out in the reasons for judgment of Estcourt J, along with the detail of the parties' arguments. Principally, the appellant argues that the primary judge erred by interpreting reg123 too widely, and by failing to determine the content of the phrase "right, privilege or benefit" before determining that the respondent had lost a right. The appellant says that the respondent did not have any relevant right, privilege or benefit. He did not have or seek a certificate, and accordingly had no right to elect.
As to whether the respondent "might have obtained", a right, privilege or benefit, the appellant accepts that the phrase is synonymous with "may have obtained", and that it involves some degree of probability in the sense that the chances of the claimant obtaining the right, privilege or benefit must be greater than merely fanciful or infinitesimal. Primarily, the appellant submits that the primary judge overlooked the accepted fact that if the respondent had applied for a certificate at the material time, it would have been refused.
In my view, the conclusion reached by the primary judge was correct, although my approach and reasoning may be somewhat different. As a preliminary observation, it must be correct that the regulation is truly remedial and should be interpreted in such a way which gives the fullest relief which a fair meaning of the language would allow: Pearce and Geddes, Statutory Interpretation in Australia, 7th ed (2011) at 290 – 295 [9.2] – [9.4].
Did the respondent lose a right, privilege or benefit?
The parties addressed the separate meanings of the three key words in this phrase, and there does not seem to be any dispute. As stated by Lord Oliver in Re KD [1988] 1 AC 806 at 825 (a case referred to by the primary judge), the word "right" can be used in a variety of different senses, both popular and jurisprudential. It may mean a right to something in respect of which the law will provide an appropriate remedy, it may signify a privilege of doing something without interference, or it may signify no more than a hope or aspiration to a social order.
The appellant suggested, without dissent, that in the regulation the word "right" would mean a just claim whether legal, prescriptive or moral, or something of which is due by virtue of a just claim. The word "privilege" was suggested as meaning a right or immunity enjoyed by a person beyond the common advantages of others, or the grant of such a special right or immunity. "Benefit" was suggested as meaning a payment or other assistance, or anything that is for the good of a person.
There is, as both counsel acknowledged, an overlap between the meaning of the three words which make up what was described by senior counsel for the appellant as the "touchstone phrase". The appellant acknowledged that "the phrase contemplates at its heart the provision … of something which is of value to or is good for the person". However, the focus of the arguments was on "rights". I will proceed accordingly, but refer to the separate notions when it is necessary.
To return to s5, the primary judge first referred to the right "to obtain a s5 certificate", but then outlined the right to become a contributor as involving taking two necessary steps. The appellant identifies the first step as a "right to apply for a certificate", and asserts that that right was but an aspect of the respondent's freedom of action. It says that the respondent's case at the highest could only be that he was entitled to apply to his employer for the issue of a certificate. "It follows that any 'right' of the respondent to join the scheme was always inchoate and cannot be said to have been lost".
At least in strict terms, it does not seem to me to be that for an authority to have issued a certificate, a person needed to apply for one. Although that might have happened in practical terms, that is not what s5 said. The right to a certificate was not made conditional on applying for one. For that reason, in the context of looking at whether a right under the Act or Regulations was lost, it may be unhelpful to speak of a right or an obligation to apply for a certificate in order to obtain the right to elect.
Section 82A(1)(b) and (c) of the Act makes the situation clearer. That section was an amendment to the Act made in 1989. A similar provision had previously existed in the form of reg24(1)(ab) and (ac) of the Retirement Benefits Regulations 1992, which was inserted in those Regulations in 1985. Section 82A relevantly provides as follows:
"Duties of responsible officers
82a — (1) The responsible officer of an Agency or branch —
(a) …
(b) shall, as soon as a person employed in that Agency or branch is entitled to elect under section 5 (1) or 6 (1) (a) to become a contributor or as soon as a person becomes employed in that Agency or branch as provided in section 6 (1) (b) or (c) —
(i) notify that person, in writing, of the eligibility of that person to elect to contribute to the Fund; and
(ii) provide that person with a form of election in accordance with the prescribed form; and
(c) shall, if a person to whom paragraph (b) applies makes an election in accordance with the prescribed form, immediately —
(i) deliver or forward that election to the Board; and
(ii) notify the Board, in writing, of the person's address, date of birth and date of appointment and the salary assigned to the office or position held by the person; …".
The predecessor to s82A (reg24), was considered by Heerey J in Mulcahy v Hydro-Electric Commission (1998) 85 FCR 170. The factual issues were whether the applicant and others were wrongly not treated as permanent employees, or were temporary employees who had not been made aware of their rights to join the fund. Having found against the applicants on the permanency issue, his Honour went on to consider the duty to advise temporary employees.
At 206, his Honour said:
"There was no statutory requirement concerning notification of temporary employees of their right to elect until 29 November 1985 when reg 24(1)(ab) and (ac) of the 1982 regulations came into force. …
Counsel for the Hydro contended that reg 24(1)(ab) could have no application because it operated 'as soon as' a person is entitled to elect under s 5(1) or 6(1)(a) of the 1982 Act to become a contributor. He argued that s 5(1) was never satisfied because a certificate as to likely appointment for three years was never issued. …
I do not accept these arguments. As to s 5, since the whole purpose of the regulation is to convey knowledge of the right to elect, and no one would obtain a certificate unless he or she had that knowledge, it would be pointless to construe the regulation as imposing the requirement to notify only after the person obtained a certificate."
Applying what Heerey J said, I think it is clear from the combinations of ss5 and 82A, that the legislation imposed an obligation on the authority to consider the position of an employee who had been employed in a temporary capacity for the past 12 months, and to issue a certificate if it appeared that the person will be continuously employed as required. A person who received the required notification and the certificate may have chosen to make the election, or not to do so.
That would not be such an onerous obligation so as to compel a different construction. As the material showed in this case, the respondent was initially employed for one year, with four annual extensions until he was made permanent. Using him as an example, and accepting that there were others in a similar situation, it was not unduly complicated or arduous to require the authority on each occasion that an extension of temporary employment was contemplated, to assess the likely situation for the ensuing three years.
It follows from that, and from the unchallenged findings of the trial judge, that the respondent had a crystallised right to a certificate from the expiration of the first twelve months of his temporary employment. This does not alter the situation that until the respondent had the certificate, he could not have made the election. I think it can be accepted that until he had the certificate, he had a contingent or inchoate right to elect to become a contributor. The appellant did not however, explain why that inchoate right was not a privilege or benefit under the Act, particularly given its own interpretation of the touchstone phrase. I think that such a right surely must be so described.
What this analysis shows is that the respondent had a right to the certificate which was lost, and, along with it, the accompanying right to make an election which he could have exercised. In my opinion, in that sense the respondent lost a right, privilege or benefit under the Act, and one to which he was otherwise entitled. There is no need to decide precisely which description applies to that which was lost. It is enough if something tangible is identified which fits the description of one or more of the concepts, that it has been lost otherwise than through the person's fault, and that remediation is equitable.
If I am wrong about the combined effect of ss5 and 82A, that leaves the situation as follows. A person who had been continuously employed in a temporary capacity for twelve months could apply for a certificate. That could be described as a right in the sense of a matter of freedom of action. It could also be described as a privilege. However, I doubt whether the loss of that right or privilege of itself would be sufficient to attract a remedial power under reg123. Of course, it is the right to elect which is significant.
The respondent was a person who had the right or privilege to apply for a certificate. The finding of the trial judge is effectively that the respondent qualified for the issue of the certificate. Accordingly, what the respondent lost was both the right or privilege of making an application for a certificate, and the contingent or unperfected right to elect in circumstances in which he was entitled to that certificate.
The principle of construction relating to remedial legislation needs to be borne in mind. The appellant acknowledges the breadth of the so-called "touchstone phrase". Accepting that the right to elect might properly be called a contingent or inchoate right, I find it difficult to see how it can be said that in that position, the respondent has not lost something which he had by virtue of the Act or Regulations, and which was of value or benefit to him so as to fall within the phrase. I have already commented on the absence of explanation concerning the implied lack of value of the inchoate right to elect as a privilege or benefit.
In other words, I would take the view that by virtue of the loss of this compendium of a right or privilege to apply, and the contingent right of election, the respondent lost a right, privilege or benefit under the Act; in effective terms, the "right to elect" under s5(1) of the Act. It seems to me that this generally accords with the approach adopted by the primary judge.
Might a right, privilege or benefit have been obtained?
It is not necessary to go any further, but I will do so in deference to the arguments which were put. If I am wrong about my conclusion under the first limb of reg123, I take the view that the respondent can bring himself within the second limb of reg123. That is, he lost a right, privilege or benefit which he might have obtained.
There was some debate about the grammatical construction of the regulation, but ultimately, the appellant accepted that the phrase "might have obtained" is disjunctive, and that the words must be given their full force and effect. There may be a difficulty with the concept of losing or ceasing to be entitled to something which a person did not actually have or was entitled to, but which they "might have obtained". To the extent that there is any such difficulty, it is overcome by giving "lost" the meaning of "been unable to obtain" or "put beyond reach", or similar effect.
The operation of the provision is clear. Subject to par(b), under this limb the Board may exercise its remedial powers if it is satisfied that a person has, otherwise than through his or her own fault, "lost" a right, privilege or benefit under the Act or Regulations which he or she might have obtained.
Because it is a remedial provision, the words "might have obtained", should be given a meaning which gives the fullest possible relief. The regulation does not impose any limitations on how it could be asserted that a person "might have obtained" a right. The operation of the causal aspect of the provision is not restrained or confined in any way. There may be one cause of the loss; there may be cumulative causes, or multiple sufficient causes. What matters is that the loss was otherwise than through the person's own fault, and that the right might have been obtained. It should also be remembered that, as a controlling mechanism, par(b) provides an overriding requirement that it must be equitable for the person to be allowed the enjoyment of the right.
In this case, there seems to be no doubt that had the respondent applied for a certificate, he would not have obtained it. But that cannot be the end of the matter. Had the respondent applied for a certificate, and had the correct construction of s5 of the Act been applied, he would have obtained it. On that basis, it must be concluded that, otherwise than through the respondent's own fault, he lost a right – a right to elect to become a contributor – which but for the failure to apply and but for an incorrect view of what s5(2) required, he might have obtained. I think that this goes beyond a mere loss of an opportunity not falling within the regulation.
Conclusion
I would dismiss the appeal.
File No 551/2013
RETIREMENT BENEFITS FUND BOARD v
GEOFFREY FREDERICK ELMORE
REASONS FOR JUDGMENT FULL COURT
ESTCOURT J
30 January 2014
The background
The respondent commenced employment in a temporary capacity as a teacher at the Launceston College of TAFE on 11 March 1991. As at the date of the hearing before the learned primary judge, the respondent remained employed by the State Government doing essentially the same sort of work.
His employment became permanent as from 30 June 1994 and as a result, from that date, he became a contributor to the Retirement Benefits Fund ("the Fund"), a contributory superannuation scheme established under the Retirement Benefits Act 1982 ("the Act").
In October 2011, the respondent made an application to the appellant by which he sought, in effect, to receive the benefits that he would have received if he had he had elected to contribute to the Fund pursuant to s5(1) of the Act with effect from 11 March 1992. That date being a period of one year after his temporary employment commenced, which period is relevant for the purposes of the Act.
The respondent's application to the appellant was made under reg123 of the Retirement Benefits Regulations 2005 ("the Regulations"). The appellant refused his application and thereafter, pursuant to reg127(1) of the Regulations, the respondent required the appellant to apply to this Court for a declaration as to the validity of the appellant's refusal.
The application came before Blow CJ. His Honour set aside the decision to refuse and substituted a decision whereby the respondent would receive the benefits for which he had applied.
Section 5 of the Act and regulation 123 of the Regulations
The Retirement Benefits Act 1982, s5, provided as follows:
"5 (1) A person who is not an employee, but is employed in a temporary capacity, may elect to become a contributor if during the past 12 months he has been continuously employed in a temporary capacity and a certificate is issued by the appropriate authority, in accordance with this section, stating that he is likely to remain in employment for at least 3 years.
(2) A certificate shall be issued for the purposes of subsection (1) if, and only if, it appears that the person to whom it relates will be continuously employed in a temporary capacity for the 3 years next ensuing or until he becomes an employee otherwise than by virtue of this section.
(3) An election under subsection (1) shall be by notice in writing to the Board accompanied by the certificate referred to in that subsection.
(4) On the making by a person of an election under this section, he shall be deemed to become an employee within the meaning of this Act and to remain such an employee so long as he is employed in a temporary capacity or as an employee.
(5) For the purposes of this section, a person shall be deemed to be employed in a temporary capacity if he is employed in such circumstances that, had he been so employed in a permanent capacity, he would have been an employee within the meaning of this Act and, in relation to a person so employed, the appropriate authority means —
(a)if he is an employee, within the meaning of the Tasmanian State Service Act 1984, the Minister administering that Act;
(b) if he is a police officer, the Commissioner of Police;
(d)if (not being a person referred to in any of the foregoing paragraphs of this subsection) he is so employed by any authority or body, that authority or body; or
(e)in any other case, such authority as may be prescribed in the regulations in his case.
(6) A certificate signed by a person authorised in that behalf by an appropriate authority shall be deemed for the purposes of this section to be a certificate issued by that authority." (Emphasis added.)
The Retirement Benefits Regulations 2005, reg123, provides as follows:
"123 Power of Board to reinstate lost rights
(1) If the Board is satisfied, after such inquiry as it thinks fit, that —
(a)a person has, otherwise than through his or her own fault, lost or ceased to be entitled to a right, privilege or benefit under —
(i) these regulations; or
(ii) the Retirement Benefits Act 1982; or
(iii) the former regulations —
to which he or she was otherwise entitled or might have obtained; and
(b)it is equitable that he or she should be allowed to have the enjoyment of that right, privilege or benefit —
the Board, with the approval of the Minister, may permit that person to exercise the right or grant to him or her the privilege or benefit, notwithstanding that the time prescribed for doing any act in respect of the entitlement may have expired.
(2) The Board must not exercise its powers under subregulation (1) —
(a)so as to allow a person who, at the time when the Board makes a determination under that subregulation, is not an employee to become a contributor; or
(b)so as to allow a person who is no longer a contributor to effect a change in the date on which he or she became a contributor; or
(c)so as to allow a person to utilise a percentage calculated, or factor determined, by the Actuary which is not the relevant percentage or factor in force at the time of the Minister's approval.
(3) The Board, in the exercise of its powers under subregulation (1), may impose any conditions and requirements that it considers just and the Minister approves." (Emphasis added.)
The decision below
The learned primary judge construed s5 of the Act at [25] of his reasons for judgment, as follows:
"Read in context, I think s5(2) should be not interpreted as requiring a certificate to be issued only when a person had a contractual right to three further years' continuous temporary employment, or some sort of 'guarantee' of three further years' continuous temporary employment. Bearing in mind that s5(1) required the certificate to state that a certain state of affairs was 'likely', I think that s5(2) required the 'appropriate authority' to determine what appeared to be likely to happen . If it was likely that a particular employee, employed in a temporary capacity, was going to remain in employment continuously for at least another three years, in the sense that it appeared that that person would be continuously employed in a temporary capacity for at least that long, then the requirements of s5(2) were satisfied, and the appropriate authority was required to issue a certificate, even if the employee had no contractual right to, or promise or 'guarantee' of, three further years' continuous employment."
His Honour was satisfied in the light of the evidence before him, that at all times from 11 March 1992 to 30 June 1994 inclusive, it was apparent that the respondent would, in the words of s5(2) of the Act, "be continuously employed in a temporary capacity for the 3 years next ensuing" or until he became a permanent employee and that no other conclusion would have been reasonably open to the "appropriate authority" if the respondent had sought the relevant certificate at any time during that period.
His Honour noted however that the evidence before him very strongly suggested that, if the respondent had in fact sought such a certificate during that period, the appropriate authority would have taken a very different approach to the meaning of the legislation, and that the respondent would have been refused a certificate. Such refusal being on the basis of the then prevailing view of that authority that the future period of employment had, in effect, to be "guaranteed".
Such a guarantee, his Honour found, would not have been certified. But he said, that was not to the point. His Honour found that throughout the relevant period the respondent satisfied the requirements of s5(2) of the Act, that he was entitled to a certificate under s5, and that with such a certificate he would have been entitled to elect, pursuant to s5(1), to become a contributor to the Fund.
The learned primary judge then went on to consider reg123 of the Regulations and noted that the respondent could succeed in the case only if he satisfied reg123(1)(a). That is to say, that he could only succeed if he had, "otherwise than through his … own fault, lost or ceased to be entitled to a right, privilege or benefit under … the Retirement Benefits Fund Act 1982 … to which he … was otherwise entitled or might have obtained".
The learned primary judge noted that the respondent contended that nobody had told him anything about any possibility of him joining the Fund while he was a temporary employee, "and that, as a result, he lost the right to obtain a s5 certificate and also the right, once he had that certificate, to elect pursuant to s5(1) to become a contributor to the relevant scheme".
His Honour then dealt with the question of whether the respondent had lost the relevant right "otherwise than through his own fault" as required by reg123(1)(a) of the Regulations. He said at [35] - [38] of his reasons for judgment:
"35 When Mr Elmore gave evidence before me, counsel for the Board cross-examined him about a document that purported to be a copy of an identical letter dated 10 April 1991 that was addressed to him at the address in Trevallyn where he was living at that time. He said that he could not recall receiving that letter; that he would have kept it if he had received it; that it would have been kept in a file that he kept containing documents to do with the subject matter of this case; and that he had not brought that file to Court. I think that Mr Elmore would have remembered receiving that letter if he had received it, and that he was an honest witness. I am therefore satisfied on the balance of probabilities that he did not receive that letter.
36 Even if I am wrong as to that, I still think it can be said that Mr Elmore was not at fault in relation to his loss of the right to become a contributor. The critical paragraph in the letter read as follows:
'A temporary employee may elect in writing to join the Retirement Benefits Fund provided he/she has completed twelve months continuous service and the agency/employing authority will certify a further three years' employment or where four years' continuous service has been completed.'
37 That paragraph did not contain information as to what degree of certainty was required for a certificate as to a further three years' employment. It did not say that the certificate needed only to state that the employee was 'likely' to remain in employment for at least three years. It did not state that such a certificate had to be issued if it appeared that the person in question would be continuously employed in a temporary capacity for the following three years. Because of the absence of those pieces of information in the letter, and because of the prevailing view that three further years' continuous temporary employment needed to be 'guaranteed' before a certificate would be issued, I do not think Mr Elmore could be said to have been at fault if he had received that letter and not then set about trying to become a contributor to the relevant scheme.
38 Under cross-examination, Mr Elmore said that he received information from his union about RBF arrangements. Initially he said he was sure that that information would have been provided after he and others became permanent employees, but later he conceded that it may have been provided before then. If accurate information about the rights of temporary employees under s5 was provided by the union to Mr Elmore before he became a permanent employee on 30 June 1994, I think that makes no difference. In my view it can still be said that, because of the prevailing view as to three further years' temporary employment needing to be 'guaranteed', he was not to any extent at fault in failing to make efforts to obtain a s5 certificate and elect to become a contributor."
Finally, the learned primary judge considered whether, for the purposes of reg123(1)(b) of the Regulations, it was "equitable" that the respondent should be allowed the enjoyment of the lost right. His Honour said at [39] - [40] of his reasons:
"39 In the circumstances, I think it must follow, as night follows day, that it is equitable that Mr Elmore should be allowed to have the enjoyment of the lost right, i.e. that he should be allowed to become a contributor to the relevant scheme with effect from a date prior to when he became a permanent employee.
40 I accept that, if he had been aware of his rights, and if the rights of temporary employees had been given proper recognition, Mr Elmore would have sought to obtain a s5 certificate, and to become a contributor, as soon as he could."
The appeal
The appellant has appealed from the decision of the learned primary judge on eight grounds. They are as follows:
"Grounds concerning the Retirement Benefits Act 1982
1 The learned hearing judge erred in law in misconstruing s5 of the Retirement Benefits Act 1982 ('the 1982 Act'), by giving to sub-s5(1) a literal and overarching construction under which the word "likely" therein contained was wrongly interpreted to govern the differently expressed necessary and sufficient conditions for the issue of a certificate set out under sub-s5(2).
Particulars
His Honour wrongly held that all that was necessary in order for a person in the position of the Respondent to be entitled to a sub-s5(1) certificate was a likelihood of continuity of employment for a period of 3 years following the issue of the certificate, whereas his Honour ought to have held that it was a necessary and sufficient condition of entitlement to a sub-s5(1) certificate, imposed under sub-s5(2), that the certificate issuing authority consider that the employment of the Respondent was in practical terms guaranteed for the said 3 year period.
2 The learned hearing judge erred in law by failing to consider, or properly consider, and apply the phraseology used by sub-s5(2) of the 1982 Act, which required that it appear to the certificate issuing authority that the applicant for the certificate 'will be continuously employed in a temporary capacity' (emphasis added) for the period of 3 years to which the certificate was to relate.
3 The learned hearing judge erred in law in failing to have regard to and apply the settled general legal principle that all relevant provisions of an enactment are to be construed together so as to produce a harmonious outcome which gives effect to each of the provisions as a separate enactment with work to do.
Particulars
The relevant provision which was entirely disregarded by his Honour was s6 of the 1982 Act, which provided for an employee in the position of the Respondent to be entitled to elect to join the contributory scheme if he was unable to obtain a certificate under s5 and had completed 4 years continuous service. If his Honour's view of s5 is correct then an employee could much more easily obtain a sub-s5(1) certificate; then there would be no need for the right given by s6, and that section would have little or no work to do.
4 The learned hearing judge erred in law by applying too widely and without analysis the legal presumption in favour of resolving any ambiguity in a statutory scheme of the present kind in favour of the employee and against the State, by interpreting sub-s5(1) as if it stood alone and with an eye to find ambiguity in circumstances in which, on proper analysis, none existed.
Grounds Concerning reg123 of the Regulations
5 The learned hearing judge erred in law by interpreting reg123 of the Regulations too widely, and by failing to determine the content of the phrase 'right, privilege or benefit' before determining without analysis that the Respondent had lost a right within the meaning of that phrase, namely a 'right' to a sub-s5(1) certificate, when in fact the Respondent had never sought such a certificate and never had any right to, nor might have obtained, any such certificate.
6 The learned hearing judge erred in law by failing to properly consider and determine whether or not the Respondent had discharged his onus of proving that he had lost a right without fault on his part, in circumstances in which the learned hearing judge ought to have considered and determined the effect in this context of the personal failure of the Respondent to seek any advice at any material time in relation to his right, if any, to join the contributory scheme whilst a temporary employee.
7 The learned hearing judge erred in law by determining, in considering whether the Respondent had discharged his onus of proving that he had lost a right without fault on his part, that it was the duty of the Appellant to advise the Respondent in detail in relation to some right to join the contributory scheme whilst a temporary employee.
8 The learned hearing judge erred in law by failing to take into account and to apply his finding that, if the Respondent had applied for a sub-s5(1) certificate at the material time, it would have been denied to him, in that the learned hearing judge ought to have determined that it could not be equitable for the Respondent to be given the right now when, if he had applied for it at the material time:
(a) it would then have been denied to him; and
(b)there is no evidence that he would then have taken any step to obtain it once denied."
Ground 5 of the notice of appeal
I will deal first with ground 5 of the notice of appeal, which I regard as central to the outcome of the appeal.
Ground 5, as can be seen, asserts that the learned primary judge erred in law by interpreting reg123 of the Regulations too widely, and by failing to determine the content of the phrase "right, privilege or benefit", before determining, without analysis, that the respondent had lost a right within the meaning of that phrase.
This appeal ground squarely raises the question of whether the respondent lost any right at all within the meaning of reg123 of the Regulations.
The appellant's submissions on ground 5
On the question of whether the respondent lost a "right" to which he was "entitled", senior counsel for the appellant, Mr Abbott SC, submits, in summary, that:
· the "right" to apply for a certificate identified by the learned primary judge is no more or less than one aspect of the respondent's freedom of action;
· the respondent never had the right to join the contributory scheme, for want of his employer's certificate required under s5(1), for which he never applied and to which, on the appellant's analysis, he was never entitled;
· even if the learned primary judge's view of the construction of s5 is correct, and all that was necessary was the likelihood of continuing employment, the respondent's case at its highest is that he was entitled to apply to his employer for the issue of a certificate;
· the issue of the s5 certificate was always a matter for the employer, and was to be issued or not on the basis of the employer's subjective view as to the likelihood of continuity of the respondent's employment for the relevant three year period;
· it follows that any "right" of the respondent to join the scheme was always inchoate and cannot be said to have been lost, but
· whether the respondent "might have obtained" that right is another matter, separately addressed.
Senior counsel for the appellant submits that the reg123 of the Regulations does not permit the appellant to relieve against the "loss of an opportunity". The submission runs that, whatever may be the precise content of the touchstone phrase, it is necessary, for the relieving power of the appellant to be enlivened, that a "right, privilege or benefit" has been lost. The relieving power goes no further and does not extend, necessarily at least, to the loss of an opportunity.
Counsel submits that the respondent's position under the Act, put at its highest, was that s5 gave to him a statutory right to seek a certificate from the relevant government authority and to then elect to join the contributory scheme. The appellant, on receipt of the certificate and the election contemplated under s5(3), would no doubt have been required to admit the respondent to the scheme, from which it seems to follow, counsel argues, that, to the limited extent now being discussed and on the assumption just mentioned, the respondent may have lost a "right" given to him under the 1982 Act when it was repealed.
In the end, however, counsel submits that this goes nowhere, because it is fallacious to go on to claim, as the respondent does, that the respondent has in some way lost the right to join the contributory scheme "from the time he was first entitled to join". Counsel submits that the respondent was never entitled to join at any time before he became a permanent employee with effect from 30 June 1994. It follows, the submission continues, that this claimed right, if it is properly so described, has not been lost because it never existed in the first place. That is to say, that the respondent was never issued with and never sought a certificate, and was never entitled to one as a matter of right, and that further, on this analysis, there is no lost "privilege or benefit".
The respondent also claimed in the alternative that the appellant ought to exercise its power under reg123(1) of the Regulations to restore to the respondent a "right, privilege or benefit" which he "might have obtained", rather than a right, privilege or benefit to which he was "entitled".
As to that claim, counsel for the respondent submits that the evidence is that the employing authority did not consider the respondent's temporary employment to be guaranteed in any sense and, whether or not that was the fact, it was highly unlikely that the certificate would have issued even if the respondent had sought it.
The learned primary judge found that a certificate would have been refused, and senior counsel for the appellant submits that such finding carries with it the conclusion that there was no reasonable prospect of the respondent obtaining it at any material time. The appellant submits that it follows then that the respondent's alternative claim must also fail because it cannot be said, as a matter of fact, that he lost something that he "might have obtained".
The respondent's submissions on ground 5
Generally, as to the question of what constitutes in this case the relevant lost "right" within the meaning of s5 of the Act, counsel for the respondent, Mr McKenzie, contends in his written submissions as follows:
"The fact the right [to elect to join the Fund] only exists if the certificate is issued does not render it any less a right that can be lost. Many rights depend on qualifications being met before the right may be accessed. If a person had no prospect whatsoever of meeting a required qualification then they could not be said to have lost the right. One can't lose a right for which one could never have qualified. But if a person is wrongly prevented or deterred by misinformation from attempting to qualify for the right then they have already lost it."
On the question of what rights were lost by the respondent, counsel for the respondent submits that there were a number of interrelated rights.
They include, he contends; a right in the respondent to apply to his employer for a certificate under s5 of the Act; a right to have his employer give due consideration to the provision of the requested certificate and if warranted – to issue it; a right to have his employer issue the certificate and, a right, upon obtaining a certificate and making an election, to be treated as an employee under the Act.
Counsel for the respondent submits that the right to apply for a certificate is not just a matter of freedom of action, as such action has no relevance except in the context of a statute that refers to obtaining the certificate as a prerequisite to exercising a right to join the Fund.
He further submits that the requirement of a prerequisite does not prevent the existence of a right and that even if it is correct to say that the respondent had not gained the prerequisites to qualify to exercise the right, the appellant is left with having to examine why the respondent did not gain the necessary prerequisite.
Counsel for the respondent contends that the fact that s5 of the Act required a certificate carries with it a right to apply for the certificate and, if there was no right to apply for a certificate then the right to elect to join the Fund would be illusory.
He maintains the respondent's argument advanced before the learned primary judge, that the employer was not entitled to act on a whim, but was obliged to treat the respondent fairly if he applied for a certificate.
Section 5(2) of the Act, counsel for the respondent contends, is mandatory, providing relevantly that "[a] certificate shall be issued ... if ... it appears that the person to whom it relates will be continuously employed ...".
Further he argues, the language of s5(2) is directed to objectively measurable facts and not to the mere subjective view of the employer.
The words "likely" in s5(1) and "appears" in s5(2), he maintains, connote probability rather than certainty, and the assessment of probability is a matter well-known to law and not considered to be a purely subjective matter.
On the question of whether a "lost opportunity" is a "right, privilege or benefit", counsel for the respondent submits that the words in reg123(1) of the Regulations relevantly refer to a situation where "a person has … lost or ceased to be entitled to a right, privilege or benefit … to which he or she was otherwise entitled or might have obtained", and that the words "might have obtained" connote opportunity. Counsel submits that, therefore, the regulation covers the loss of an opportunity to access a benefit, or a right, or a privilege.
Counsel for the respondent further contends that the word "might" as a qualifier in this context is akin to "possibly" rather than "probably", and that "the door is only closed if there was no possibility that the contributor could have obtained the lost right".
As to the meaning of the word "entitled" in reg123 of the Regulations, counsel for the respondent relies on the decision in R v Rose [2009] QCA 83.
In that case the Queensland Court of Appeal considered the meaning of the word "entitled" in the context of the Criminal Code 1899 (Qld), s222(8), which provided, "this section does not apply to carnal knowledge between persons who are lawfully married or entitled to be lawfully married".
In her reasons for judgment, McMurdo P with whom Muir JA and Atkinson J agreed, said at [21]:
"I have not found any case directly applicable to the meaning of 'entitled' in s 222(8), but I have been referred to a useful decision of this Court: Rankin v Agen Biomedical Ltd. The Court there discussed the meaning of 'entitled' in the quite different context of the now repealed O 45 r 1 Supreme Court Rules which relevantly provided:
'When facts arise after the giving of a judgment or making of an order which entitle the person against whom the judgment or order is given or made to be relieved from it ... he may apply to the Court or a Judge for a stay of execution or other appropriate relief; and the Court or a Judge may grant such relief ...'." (My emphasis, footnote omitted.)
The question for the Court's determination in that case was whether O45, r1, could relieve a party from the consequences of a self-executing order on the basis that events subsequent to the making of the order justified resort to O45, r1. If the word "entitle" in O45, r1, connoted only an absolute right, not merely a possibility of applying for relief, the party could not benefit from O45, r1. McMurdo P noted that in KGK Constructions Pty Ltd v East Coast Earthmoving Pty Ltd [1985] 2 Qd R 13 McPherson J (the other members of the Court agreeing), adopted an expansive construction of O45, r1, and of the notion of the entitlement it provided; a party could have recourse to O45, r1, even where the facts demonstrated there was not an absolute entitlement but merely an entitlement to favourable consideration.
Following KGKConstructions Pty Ltd v East Coast Earthmoving Pty Ltd, the Court in Rankin v Agen Biomedical [1999] 2 Qd R 435 at 438 [9], interpreted the word "entitle" in O45, r1, as "capable of referring to instances in which the person seeking relief has to depend on a favourable exercise of discretion and claims no absolute right to relief".
As to the phrase "to which he … was otherwise entitled or might have obtained" in reg123 of the Regulations, counsel for the respondent submits that it "is not expressed with perfect grammatical precision but its meaning is plain".
He notes that senior counsel for the appellant argues that the word "to" in that phrase must be ignored to make sense of the clause because counsel for the appellant reads the phrase in this manner "to which he … was otherwise entitled or to which he might have obtained".
Counsel for the respondent however submits that the phrase is to be read in the following manner, either:
a) "to which he … was otherwise entitled or which he might have obtained",
or
b) "
towhich he … was otherwise entitled to or might have obtained".The respondent agrees with the appellant's submission that there is a clear distinction between: a "right, privilege or benefit" one is "entitled" to, and a "right, privilege or benefit" one "might have obtained".
As to the degree of probability required to enliven the obligation to give a certificate under s5 of the Act, the respondent agrees with the appellant's submission that the probability must be more than "infinitesimal, fanciful or non-existent".
Consideration of ground 5
In my view, the respondent was not, at any time prior to becoming a permanent employee, "entitled" to any "right, privilege or benefit" under "the Retirement Benefits Act 1982" within the meaning of those words as set out in reg123 of the Regulations. I do not accept the submission of counsel for the respondent that the respondent had a number of "interrelated rights". At best, to my mind, the respondent had, by virtue of s5(1) of the Act, a contingent and inchoate eligibility to elect to become a contributor to the Fund.
To the extent that a contingent or conditional eligibility to elect to obtain an entitlement under a statute, although inchoate, might be said, as is argued by counsel for the respondent, to be nonetheless a "right, privilege or benefit" to which a person is "entitled", it ought not to be so construed in the present case.
That is because reg123(1) of the Regulations is expressly framed in such a way as to clearly distinguish between a "right, privilege or benefit" to which a person was "otherwise entitled" and one that the person "might have obtained".
A contingent eligibility to make an election, being conditional or inchoate, is more appropriately characterised as a "right, privilege or benefit" that a person "might have obtained" than it is as one to which he or she was "entitled".
Rankin v Agen Biomedical Ltd (supra) is distinguishable on this basis. The particular statutory context with which that case was concerned was such that it was clear that the relevant entitlement could not be construed as an absolute entitlement.
There, the rule of court under consideration provided the court with a discretion to relieve a party from a judgment or order when facts arose after judgment which "entitle" a person to such relief. There can be no absolute entitlement to a favourable exercise of discretion. The word "entitle" in that context could only have connoted an entitlement to favourable consideration. In the present case the word "entitled" is used in contradistinction to the term, "might have obtained", and that, in my view, brings about the result I have outlined above at pars[121] - [123].
The respondent then, not being relevantly "entitled" to anything at all under s5 of the Act, cannot be said, for the purposes of reg123(1)(a) of the Regulations, to have "ceased to be entitled" to anything, be it a "right", or a "privilege", or a "benefit".
The relevant inquiry must therefore become the alternative inquiry of what it may be said that the respondent "lost" that he "might have obtained" within the meaning of reg123(1)(a).
What the respondent "lost" was a conditional eligibility to be able to "elect to become a contributor". Whether that loss be characterised as a loss of a "right", or of a "privilege", or of a "benefit" is immaterial.
The respondent lost that conditional eligibility because, on the facts as found by the learned primary judge (about which there is no complaint on this appeal), neither his employing authority nor the appellant ever advised him that he had it.
The relevant precondition to the respondent's eligibility to elect to become a contributor was the issue of a certificate stating that it was likely that he would remain in employment for at least three years.
It is not appropriate for the purposes of reg123(1)(a) of the Regulations in this case, to characterise a right or entitlement to the satisfaction of the precondition itself as the relevant "right", or "privilege", or "benefit".
If an application for the required certificate represented anything personal to the respondent, it was not a "right, privilege or benefit". Rather, it is more properly viewed as an obligation on the part of the respondent to make the application. The issue of such a certificate could not sensibly be said to be the product of a relevant "right, privilege or benefit" under subs5(1) or (2) of the Act.
Nor could a postulated right to the issue of the certificate be said to be a relevant right simply because, in a broad general sense, the certificate might be said to relate to or be in connection with, a contingent eligibility to elect to become a contributor under s5(1) of the Act.
The reason is that regs123(1)(a)(i), (ii) and (iii) of the Regulations, require that the relevant "right, privilege or benefit" be one "under" the Regulations themselves, or under the Act, or under "the former regulations". As already observed the only relevant "right, privilege or benefit" under s5 of the Act was a contingent eligibility to elect to become a contributor.
As a result of these considerations, the focus of the relevant inquiry in this case can only be on the lost contingent eligibility under the Act to elect to become a contributor.
The inquiry must be, did the failure of the respondent's employing authority and of the appellant to advise the respondent of the provisions of s5 of the Act, of itself, cause him, as he contended, to lose the eligibility to be able to elect to become a contributor?
Put another way, had the respondent's employing authority or the appellant advised the respondent in detail of the provisions of s5 of the Act, could it be said that he "might have obtained" the right of eligibility to elect to become a contributor?
The answer to those questions, on the facts as found by the learned primary judge, must be "no", as his Honour found that had the respondent applied for the necessary certificate, the "appropriate authority" would have refused to issue it because of the generally held belief at the time that the required period of three years future employment had, in effect, to be "guaranteed".
His Honour found that the evidence before him "very strongly" suggested that, if the respondent had in fact sought a certificate, the authorities would have taken a very different approach to the interpretation of the legislation from that of his Honour, and the respondent "would have been refused a certificate".
I note the submissions of counsel for the respondent that the assessment of probability is not to be considered as a subjective matter and that "the door is only closed if there was no possibility that the contributor could have obtained the lost right", but I also note his acceptance of the submission of senior counsel for the appellant, that the probability must be more than "infinitesimal, fanciful or non-existent". In my view, on the evidence before the learned primary judge, there was no realistic possibility that the respondent would have been granted a certificate under s5 of the Act had he applied for one.
That the learned primary judge held that, on a "proper construction" of subs5(1) and (2) of the Act, the required period of three years future employment had only to appear "likely" in order to entitle the respondent to the issue of the relevant certificate does not assist the respondent as the proposition that he "ought" to have been issued with the certificate does not displace the fact that he would in fact have been refused. To reason on the basis of what ought to have occurred on a proper construction of the relevant sections of the Act is to overlook the factual position in favour of a counterfactual scenario, thus premising the lost eligibility to be able to elect to become a contributor on a false antecedent.
The operative cause of the respondent's lost eligibility to elect to become a contributor to the Fund may be identified as his inability to satisfy a necessary precondition to such election because of a legally erroneous view held by the appropriate authorities as to the circumstances in which a certificate of future employment could issue; but that does not involve a relevant lost "right, privilege or benefit" that the respondent "might have obtained" under the Act.
That the respondent "ought" to have obtained the ability to elect seems reasonably clear, but that is not something that is remediable by the mechanism of reg123(1) of the Regulations. I accept the submission of senior counsel for the appellant that reg123(1) does not run to remedy a loss of opportunity. The respondent's remedy may lie elsewhere; see Commonwealth v Cornwell (2007) 229 CLR 519 and Meredith v Commonwealth of Australia (No2) [2013] ACTSC 221.
It follows that, in my judgment, ground 5 of the notice of appeal should succeed.
Were I to be wrong in my construction of the provisions of reg123(1) of the Regulations and subs5(1) and (2) of the Act and their application to the relevant facts, I would nonetheless uphold ground 5 of the notice of appeal.
My reason is that even if the issue of a certificate of future employment can, of itself, be regarded as a relevant "right, privilege or benefit", the respondent still does not come within the protection of reg123(1).
That he does not, is first, because subs5(1) and (2) of the Act do not contain an absolute or unqualified right or entitlement to the issue of a certificate of future employment such as to be a "right, privilege or benefit" to which the respondent could be said to be "entitled" (in necessary contradistinction to one that he "might have obtained") and second, because, as already observed, the respondent cannot show that he "might have obtained" the issue of the certificate because the evidence "very strongly" suggested that the respondent would have been refused a certificate had he requested one.
Once again, it might well be said that the employing authority's erroneous view of the circumstances in which a certificate of future employment could issue, caused, on a common sense approach to causation, the loss of opportunity on the part of the respondent to obtain the issue of such a certificate, and thus the loss of opportunity to elect to contribute to the Fund. Unfortunately however, reg123(1) provides only a narrow mechanism for restoring the enjoyment of a lost "right, privilege or benefit" "under" the Act or the Regulations, and does not provide a remedy for a loss of opportunity, outside its terms, whether caused negligently or in breach of contract, or in breach of statutory duty.
I do not accept the submission of counsel for the respondent that the words "might have obtained" in reg123(1)(a) import a power in the appellant to provide relief for a "loss of opportunity" in a broad general sense. The appellant's statutory power to allow the enjoyment of a lost "right, privilege or benefit" is confined to the circumstances described in reg123 itself.
The remaining grounds of appeal
Grounds 1 to 4 of the notice of appeal, as can be seen, assert that the learned primary judge erred in his approach to the construction of s5 of the Act. Ground 4 was not pressed on the hearing of the appeal.
In the event that I am wrong as to both of my alternative conclusions as to ground 5, I can discern no error in the learned primary judge's approach and I would dismiss grounds 1 to 3.
As to grounds 1 and 2, senior counsel for the appellant submits that the governing phrase in s5(2) of the Act is "will be continuously employed". Those words, he argues, given their ordinary or natural meaning, import "certainty", or "near certainty", of ongoing employment for the relevant period of three years. They stand, he submits, "in infelicitous contradistinction to the concluding words of s5(1), namely, 'likely to remain'".
Counsel draws attention to the word "continuously", juxtaposed in s5(2) to the words "will be", rather than, for example, the words "may be" or "might be". The clear reference, he submits, is to "certain", or "near certain", employment over the ensuing three year period. It was "if, and only if", that it "appeared to" the employing authority that the relevant employment was certain, or near certain that the employer was obliged to issue the certificate.
I am not attracted to such an analysis, notwithstanding counsel's careful exposition of the canons of construction he calls in aid to suggest that if one of the two provisions, subs5(1) and (2) of the Act, is to yield or be found to be subordinate, it must be s5(1), because the necessary and sufficient conditions for the issue of the s5(1) certificate are set by s5(2).
Section 5(1) is the first expression of the preconditions to eligibility to elect to contribute to the Fund and uses the word "likely" in the phrase " … and a certificate is issued by the appropriate authority, in accordance with this section, stating that he is likely to remain in employment for at least 3 years". To my mind it is unwarranted to infer that what follows in s5(2), merely by the use of the words "will be continuously employed", requires the word "likely" to be construed as meaning "certain" or "near certain". Nor does reflection upon the words "will be" in s5(2) lead me to a different view.
As to this ground I respectfully agree with the analysis of the learned primary judge appearing at [25] of his Honour's reasons for judgment which is set out above at par[79] of these reasons.
As to ground 3, senior counsel for the appellant submits that it is to be expected that, if the threshold for the issue of a s5 certificate was as low as mere "likelihood" of continuing employment, then temporary employees who had been continuously engaged for as long as four years could easily have obtained such a certificate and then elected to join the Fund and there would then be no need for s6 of the Act. On the other hand, he contends, if the threshold was higher, and required in practical terms a guarantee of continuing employment for a further three years, it would have been harder for a temporary employee to obtain a certificate and thus the reason for the introduction of s6, namely, to provide for long-standing employees who did not enjoy the guarantee of continuity of employment necessary for the issue of a s5 certificate.
Section 5 of the Act was first enacted as s2AA of the Retirement Benefits Act 1970, which was inserted by s3 of Act No 113 of 1974. Section 6 of the Act was introduced when the Act commenced, and for present purposes remained as it was when it was enacted until the repeal of the 1982 Act.
Section 6 of the Act provided in effect that a person who was not an employee, in the sense of being a person entitled under the Act to contribute to the Fund, could nonetheless elect to become a contributor if that person had been employed continuously in a temporary capacity during the four years immediately preceding the date on which the election was made and who was unable to obtain a certificate referred to in s5(1).
Counsel for the appellant's submission is in short, that s6 of the Act, by providing a right to join after four years' continuous service, supports the view that s5 certificates were to be issued only if the relevant employee was in practical terms "guaranteed" employment for the three years to which the certificate was to relate.
I am not persuaded by that submission. It is too long a bow to draw. It is not difficult to see scope for the operation of s6 of the Act that does not depend upon its introduction being for the purpose of providing relief from the stringency of an implied requirement of s5 that continued employment be "certain" or "near certain".
Cases would doubtless arise where temporary employees were unable to obtain a certificate of future employment because at the time they applied it was not even considered "likely" that they would be continuously employed for the ensuing three years, but their four years of employment by virtue of s6 was to be taken as a retrospectively based deeming of the necessary future continuity.
Nor does it assist the appellant's argument to point to the erroneous view of the appropriate authorities that what was required for a s5 certificate was, in effect, "guaranteed" or "certain" or "near certain" future employment. Section 6 is not to be construed as to its effect by reference to a former mistaken view by the relevant authorities as to the meaning of s5 of the Act.
Finally on this ground, counsel for the appellant's suggested inference as to the genetic raison d'etre for s6 could not, in my view, displace the strength of the learned primary judge's textual analysis of s5(1), with which I have respectfully agreed.
Grounds 6 and 7 and 8 were abandoned on the hearing of the appeal.
Disposition
It follows from what I have said that, in my view, ground 5 of the notice of appeal should succeed and I would uphold the appeal.
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