CATCHWORDS – SUPERANNUATION – election to transfer from CSS to PSS – desire to revoke election – whether election can be revoked – whether Commissioner for Superannuation can cancel election – whether principles based on doctrine of non est factum or on mistake and misrepresentation in the law of contract can be read into the legislation – whether those principles would be relevant if they could be read into the legislation – decision affirmed.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Sharma and Commissioner for Superannuation [2007] AATA 1129
Case
[2007] AATA 1129
Decision Date
CaseChat Overview and Summary
This case involved an application by Mr Rudra Dutt Sharma to the Commissioner for Superannuation to cancel his election to transfer from the Commonwealth Superannuation Scheme (CSS) to the Public Sector Superannuation Scheme (PSS). The application was dismissed by the Commissioner, a decision that was subsequently confirmed on review by the Tribunal. Mr Sharma sought a review of the Tribunal's decision. The Tribunal found that the Commissioner's decision was correct. Mr Sharma had made a declaration and election to transfer from the CSS to the PSS in accordance with s 244 of the Superannuation Act 1976 (1976 Act). The 1976 Act did not permit the Commissioner to cancel the election and did not permit Mr Sharma to revoke it. Principles drawn from the doctrine of non est factum, mistake and misrepresentation could not be read into the 1976 Act or the Superannuation Act 1990 (1990 Act).