You are advised to read Circular No 3 issued to the Principal/Branch Head regarding amendments to the Superannuation Act effective from 1 January 1982.

It is common ground that the applicant would have received a payslip of this nature.

1. I note that the evidence of Mr Russell, who is a senior technical adviser with the respondent, in his evidence made it clear that the respondent or its predecessor at that time had no data base of teachers or former members of the fund. Computers were in their infancy at that time and certainly did not supply the kind of information that one would expect such a fund to have today. As a result, the only method of communicating with teachers who were not actually in the fund at that time, such as the applicant, was by sending information to the schools and publishing advertisements and persuading the Department to make a notation on the payslips of the teachers. This the respondent did.
2. The applicant stated in her evidence that throughout the part of the period of the amnesty, she was on long service leave. She stated :

During the period 22 February, 1982 - 20th Aug 1982, I was on long service leave at half pay. Throughout this period I was travelling overseas with my husband and child. The above method of notifying teachers would not realistically apply to someone on extended leave in Europe.

1. While the respondent did not dispute that the applicant was overseas from 22 February 1982, it nonetheless is quite clear that she would have received the payslip on 6 February to which I have referred. In any event, the applicant says that she had no knowledge of the amnesty.
2. During the applicant's tenure as a teacher, she had numerous period of leave for which she was not receiving full pay. Such periods of leave which were greater than one month, have been set out in an annexure to Mr Russell's statement :

LWOP Greater than 1 month and all Long Service Leave

25/04/83 to 30/07/84 CONFINEMENT LEAVE (TEACHERS ONLY)

14/09/79 to 30/11/80 CONFINEMENT LEAVE (TEACHERS ONLY)

1. The relevant legislative provisions have conveniently been set out in a Table by Ms Lloyd, counsel for the respondent, in her written submissions. That table reads as follows :

Superannuation Act 1958

Teaching Service Act 1958

State Superannuation Act 1975

Superannuation (Amendment) Act 1979

Superannuation (Lump Sum Benefits) Act 1981

Part 1 establishes the new Lump Sum Scheme

Part II makes amendments to the Superannuation Act 1958

State Superannuation Act 1988

s59(1) Teaching Service Act : a woman who married could be notice remain in permanent employment

But s60(1) also provided that married women shall not be "officers" for the purposes of the Superannuation Act 1958

MWSF Act : s 4 establishes the MWSF s6(2) provides that married women may elect to join the MWSF

s 47 amends s 3A(2)(b) with the effect that the Superannuation Act 1958 now expressed to apply to a female officer who is married as at 1 March 1975 who elects contribute to Fund prior to 1 July 1975

s 4(2) amends s 3A further, with effect that a married woman may elect not to contribute within 6 months. Referred to as the 1980 "opt out".

s 3(1) creates a new Fund called the Lump Sum Scheme

s3(2)(a)provides that the assets of the MWSF are rolled over into the new Fund

s5 provides that prior contributors to MWSF become contributors to the new scheme

s26 amends s3A(b) of the Superannuation Act 1958 with the effect that it introduces a 6 month amnesty enabling married women to join the Fund between 1 January 1982 and 30 June 1982: see s 26(1)(b) and (2)

The Act repealed the MWSF legislation and wound up that scheme.

Members of the former MWSF were entitled to roll over their contributions into the Lump Sum Scheme

Categories of members include: original scheme members; revised scheme members and new scheme members. See definitions in s 3

Section 3(1) State Superannuation Act 1988 which provided that officers "employed" (whether they had previously been contributors or not) were eligible to join the Fund prior to 30 June 1988. Those who did so obtained the advantage of a generous "catch up provision".

Those who did not join prior to 30 June 1988 were automatically became members as at 30 June 1988

The 1975 Amnesty Women who married as at 1 March 1975 had until 1 July 1975 to elect to join : see s47 of the amending Act, the State Superannuation Act which amended s 3A of the Superannuation Act 1958

The 1982 Amnesty Married female employees could elect to join or rejoin the scheme between 1 January 1982 -30 June 1982: see s26 of amending act, the Lump Sum Benefits Scheme Act 1981 - which makes amendments to s 3A of the Superannuation Act 1958

1. Mr Russell by way of annexure to his witness statement has produced a table of eligibility and contributions by the applicant, which table appears to be correct (Annexure A).
2. The provisions of s 3(1) of the State Superannuation Act 1988 and in particular s 3(1) as to the definition of "recognised service" and the provisions of Regulation 14 of the State Superannuation Regulations 1998 are of particular importance to this proceeding.
3. Section 3(1) of the Act provides so far as is relevant that :

"recognised service" in relation to an officer, means the total period (calculated in years, months and days) during which the officer contributed (or in the case of a new scheme member, was entitled to contribute) to the State Superannuation Fund and the Fund and includes -

(b) any additional period of service (if any) determined by the Board in accordance with the regulations -

1. Regulation 14 of the State Superannuation Regulations 1998, makes provision for the circumstances in which the Board can recognise certain additional periods of continuous employment. So far as is relevant, that regulation provides :

(1) On and from 30 November 1993, for the purposes of paragraph (b) of the definition of 'recognised service' in section 3(1) of the Act, the Board may on application by an officer recognise part or all of a period of continuous employment in accordance with this regulation.

(4) The Board must not recognise a period of prior employment which was not continuous and which did not immediately precede the date on which the applicant became an officer or any part of such period during which the applicant -

(a) was or was entitled to become an officer or a member of a prescribed superannuation scheme within the meaning of regulation 8; or

1. Ms Doyle, who appeared for the respondent, in her submissions at paragraphs 17-19 inclusive, correctly sets out the effect of Regulation 14. She there states as follows :

Regulation 14(1) confers a discretion on the Board to recognise all or part of a period of continuous employment. Regulation 14(4)(a) limits the breadth of the Board's discretion. It operates as a "carve out" from the area of discretion otherwise conferred on the Board. It provides that the Board must not recognise a period of prior service during which the applicant "was or was entitled to become an officer or a member of a prescribed superannuation scheme within the meaning of regulation 8".

A "prescribed Superannuation Scheme" includes any superannuation scheme established and maintained by an Act of Victoria. This includes the Fund established under the Superannuation Act 1958 and continued by the Superannuation Act 1988 in all its various forms, and the Married Women's Superannuation Fund.

As a result of the operation of regulation 14(4)(a), the Board is prohibited from recognising any part of the Applicant's prior service during which she was a member of the Fund or the MWSF or its equivalents or eligible to be such a member. An assessment of the periods during which the Applicant was a member or eligible to be a member turns on an analysis of the legislation governing eligibility during the relevant period. This history is set out in table form attached to these submissions. (see paragraphs 17 of these reasons).

1. The two factual disputes in this case concern :
   1. Whether the applicant had opted out of the scheme in 1980; and
   2. Whether there was notification to her or reasonable notification of the 1982 amnesty

1. The applicant said that she did not opt out of the scheme in 1980 because she "was forcibly removed from the superannuation fund and accepted this, as I believed (and I believe I was told) that married women with children were no longer eligible to be superannuation members". Put another way, the applicant said she was not given an option but forced out of the superfund.
2. In reference to receiving to cheque, in the applicant's written statement, she states :

As I have no recollection of receiving a cheque in 1980, especially for such a large amount of money, I undertook research to find evidence of my super history and cessation of payments.

1. However, in the applicant's viva voce evidence in cross-examination, she said that she did remember receiving a cheque for a sum around $1200 in about 1978. She said that she can remember this date because that was the time she had some lounge furniture recovered and used the money she received from the superannuation in order to pay for that recovering.
2. It seems clear that the applicant has taken a number of different stances as to the receiving of this payment and, as such, I find that her evidence in this regard is quite unreliable. Thus, I accept the report of the respondent which indicates that the applicant did receive a cheque for $1815 dated 27 June 1980. More than likely this cheque would have been received by the applicant in mid July 1980. That leaves the question of why the applicant was given a cheque at that time.
3. Mr Russell, in cross-examination, stated that a cheque would only have been issued if there had been a triggering event. He said a triggering event could occur as a result of one of five occurrences. Those occurrences were:
   • Resignation
   • Retirement
   • Retrenchment
   • Death or
   • Disability
4. I take it by the term "resignation", Mr Russell meant resignation from the fund rather than resignation from employment.
5. Mr Russell amplified this to some extent in his written statement at paragraph 88, when he stated :

In order for a member to receive a refund of contributions in 1980, the Fund must either have received a resignation benefit application form or an election by an eligible married woman not to contribute to the scheme. In each case a written application form was required.

1. Mr Lombardi, counsel for the applicant, submitted that I should accept that the applicant did not voluntarily resign from the Fund and that she was forced out, as no application form could be found. That is, not only could an application form not be found in relation to the application but no application form at all. From this fact, Mr Lombardi said that I should conclude that no resignation form was created. Examining the facts surrounding the events of the applicant no longer being a member of the Fund, I have concluded that she did apply for the return of her contributions and to leave the Fund. I note that the applicant in her statement of evidence, which she adopted as being true and correct stated, that she had no recollection of receiving a cheque at all in 1980. However, in her oral evidence she said she did in fact receive a cheque albeit in about 1978 and for a different amount. While she said in her written statement that she had undertook investigations, it would seem incredible that when making her written statement, she would not have remembered receiving the cheque which she said was for about $1200. It should be noted that, at that time, $1200 was quite a considerable amount of money. Further, it was clear from the body of her evidence that she knew that that cheque was a refund of her superannuation contributions.
2. In a letter that the applicant wrote to the respondent dated 24 May 2007, she stated :

I joined the Superannuation Fund and remained so until married women were given the option and encouraged to leave the Super Fund particularly women who were considering beginning a family.

Quite clearly this sentence could only mean that the applicant herself had opted out of the Fund.

1. Further, if the applicant did not know why she received the cheque which she said she received and she did not want to leave the Fund, it would have been a relatively simple matter for her to contact the Fund and make inquiries. She did not do that. If she had have made such inquiries, it is likely she would have been told that she was entitled to roll the sum over to the Married Women's Superannuation Fund
2. In my view, it is telling that the applicant made no inquiries and spent the sum represented by the cheque. In doing so, I find that the applicant was well aware that she had requested to be removed from the Fund and her contributions returned. Apparently, it was quite a common occurrence at that time that women who had families or about to have families desired to have their superannuation contributions so that they could spend it on various needs or desires. I find that is what the applicant did in this situation.

1. It is clear that by s 26 of the Superannuation (Lump Sum Benefits) Act 1981, s 3A(b) of the Superannuation Act 1958 was amended with the effect that it introduced a six month amnesty which enabled married women to join the Fund between 1 January 1982 and 30 June 1982.
2. The applicant said that she did not know about the amnesty however she did not say that if she had known about the amnesty, she would have accepted the same and joined the Fund. That was not part of her written evidence or oral evidence.
3. Mr Lombardi submitted that I should find that the respondent or its predecessor did not make sufficient or reasonable efforts to notify people such as the applicant about the amnesty. He stated that the applicant was not a member of a union and therefore would not have seen the advertisement in its newsletter. He further said that the applicant maintained that she was not informed by the school of any of the matters referred to in the circular that was sent around to the various schools at the time. While the applicant admitted that it was likely that her payslip on 6 February had the endorsement to which I referred, Mr Lombardi said that that was insufficient to bring the amnesty to the applicant's attention. He relied on the evidence of both Mr Russell and Mr Pearse who both agreed that the wording on the payslip was a very weak attempt at notification.
4. However, both Mr Pearse and Mr Russell said that because of the situation at the time, it was very difficult to notify those interested in the amnesty in any other way. They said there was no data bank kept of teachers and that there was no data bank of former members of the fund or their address. In these circumstances, they both held the view that the Fund did all it could do at the time in order to notify those who were interested.
5. In the last 25 years, there has been enormous developments in communications. In 1982, there was no internet and computers were in their infancy. Thus, it is not surprising that there was no data bank kept by the respondent. Given all these circumstances, I find that the respondent acted reasonably in 1982 in giving the type of notice that it did to those that may be interested. I also find that by the applicant failing to follow up the notation that was on her February 6 payslip, she deprived herself of knowing about the amnesty. Further, I find that a reasonable person in the position of the applicant would have followed up the notation on the payslip and consequently found out about the amnesty. Given that there was no evidence as to whether or not the applicant would have accepted the amnesty had she known about it, and it would have been very easy for her to call that evidence from herself, in my view, it is likely that even if she had known about the amnesty, should not have accepted the same.
6. I reject the submission of Mr Lombardi that a subjective test should be applied to the applicant's knowledge, ie Mr Lombardi said that given the circumstances, I should be satisfied that the applicant did not know of the amnesty and, as such, I should not take into account the fact that she did not take advantage of the same. In my view, it is unlikely that the legislature would have contemplated a subjective test in this situation. In my view, it is appropriate to look at the whole circumstances of the amnesty and say whether a reasonable person in the position of the applicant would have known about the same. I have concluded that such a reasonable person would have known of the amnesty.

1. The structure of Regulation 14 taking into account the definition of "recognised service" in the State Superannuation Act 1988 makes it clear the respondent, and I standing in the shoes of the respondent, have a discretion to recognise periods of employment. However, sub-regulation 4(a) makes it clear that in the circumstances there described, it is mandatory to disallow recognition of employment for the purposes of the Act.
2. During the hearing, there was considerable discussion as to the meaning of "officer" as used in regulation 14(4).
3. Ms Doyle properly conceded that if the word "officer" meant someone in the employ of the Department, other parts of regulation 14 and the Act so far as pertaining to regulation 14 would have little or no meaning. She said that the word "officer" is surplus to the interpretation. Further, she stated that it was a situation of the drafter trying to cover all bases.
4. This interpretation gives the word "officer" virtually no meaning and, is contrary to assisting Ms Doyle with showing that the decision should be affirmed. For, if the meaning to be given to "officer" was teachers, then no teacher would ever be entitled to take advantage of the other parts of regulation 14.
5. Even though this interpretation gives the word "officer" no meaning, which is contrary to normal cannons of statutory interpretation, in this particular circumstance, I have taken the view that the concession made by Ms Doyle is properly made. Indeed, Mr Lombardi in his submissions agreed. Thus in interpreting regulating 14(4)(a), I will give the word "officer" no meaning or a meaning in identical terms of a person "entitled" to be a member of a prescribed superannuation scheme.
6. Mr Lombardi conceded that in the periods between 1 January 1974 and 27 June 1980 and 27 June 1980 to 1 January 1982, the applicant was entitled to become a member of a prescribed superannuation scheme within the meaning of regulation 14(4)(a) and, as such, would not be entitled to recognition of service for those periods.
7. In the period from 1 January 1974 to 27 June 1980, Ms Doyle has correctly submitted that during this time the applicant was a member of the Fund because she was contributing to it and, under those circumstances, any discretion that the respondent may have had in relation to recognising her service in this period was removed.
8. Further, in relation to the period of 27 June 1980 to 1 January 1982, it is clear that the applicant was eligible to be a member of another prescribed scheme, viz, the Married Women's Superannuation Fund. That Fund operated until the commencement of the Superannuation (Lump Sum Benefits) Act 1981 (the bulk of that Act commenced operation on 1 January 1982, the remainder on 24 March 1982). Thus, again, regulation 14(4)(a) applies to the applicant during this period and thus, again, the Board was bound not to recognise her service this period.
9. Mr Lombardi submitted that in relation to the period from 1 January 1982 to 1 July 1982, ie during the amnesty, the applicant was not entitled to become a member of the superannuation scheme because she did not know about the amnesty. He cited from an Oxford Dictionary without giving any precise reference saying that "entitlement" meant : "eligible to choose or select". This he said implied knowledge. He said as the applicant had no knowledge of the amnesty therefore she was not a person who was entitled to become a member of a prescribed superannuation scheme as referred to in regulation 14(4)(a).
10. I note that the Macquarie Dictionary Revised 3rd Edition at p 629 defines "entitlement" as "that to which one is entitled as part of a contract, will, employment, arrangement, etc".
11. Ms Doyle stated that the word "entitlement" is scattered throughout the law and in particular she referred to "entitlements under a will or a trust". She said these entitlements do not require any aspect of knowledge and the person to whom the benefits arise under such an entitlements, have no lesser or no greater benefit because of knowledge. Thus, she said, it follows that the word "entitled" as used in the regulations did not require any element of knowledge.
12. In answer to this submission, Mr Lombardi stated that the word "entitled" in wills and trusts were somewhat different because there was no time limit upon which a beneficiary needed to exercise their rights. However, he said that the word "entitled" as used in regulation 14(4)(a) and as applied to the amnesty, meant that the beneficiary was required to exercise his/her rights within the six month period. Thus, he said, the question of knowledge was important.
13. In my view, to imply an element of knowledge into the words of regulation 14(4)(a) as applied to the amnesty would be giving the word "entitled" a meaning which it does not have. If a person is entitled to a right that entitlement exists whether or not that person has knowledge and whether or not that entitlement exists for a specific period. It is frequently found in wills and trusts that entitlements are given on condition that something happens within a certain time, subject to the condition precedent, the entitlement is no less an entitlement for the period of time than if it is continuing to infinity.
14. Thus, I find that in relation to the period 1 January 1982 to 1 July 1982 while the amnesty was in force, the applicant was entitled to become a member of the superannuation scheme and, as such, there was no discretion in the Board and, as a consequence, in this Tribunal, to recognise the applicant's service during that time.

1. It was conceded by Ms Doyle that regulation 14(4)(a) did not apply to the period between 1 July 1982 and 1 July 1988. That is, the applicant was not a member of the Fund, was not eligible to join the Fund and having missed the 1982 amnesty, the door had shut on such benefits. Further, by this time, the Married Women's Superannuation Fund was no longer an option for the applicant. Thus, for this period, the applicant came within the meaning of Regulation 14(1) and, as such, there is a discretion to recognise that period of service.
2. The question is what are the relevant considerations in exercising that discretion?
3. In the witness statement of Mr Pearse, who is the General Manager (Member and Employee Administration) Emergency Services State Super, he stated that the respondent has made policies in relation to the recognition of prior service after expiration of an eligibility period. He stated that a member "who misses the boat" is not given the benefit of recognition of prior services for that period. He further stated :

The rationale for this policy is that where eligibility is affected by a mandatory time limit (as was the case in relation to the six month 1982 amnesty) that time limit must be strictly observed and applied by the Board.

An eligibility period with a strict time limit will always appear 'unfair' to an applicant who misses the cut off date. But the Board's policy is that an express time limit, particularly those set by statute, must be adhered to. As a result, a member who now seeks recognition of prior service having failed to take advantage of a limited amnesty period will not have their service in the period after the cut off date recognised.

In formulating this policy, the Board has also been mindful of the rationale referred to above, namely that the Board must '...strive to reach a balance between on one hand, committing Government eventually to a significant proportion of any pensions or lump sums that may become payable as a result of recognising prior service, and on the other hand, the anomalies that would be created in rigidly applying existing policies to special and unique circumstances'.

The policy is applied even in circumstances where it is demonstrated that a member was not informed of the applicable 'cut off date'. The policy is uniformly applied to ensure equity across the entire Fund membership. Deviation from this approach may have far reaching consequences in terms of increasing the liability of the Fund and causing disadvantage to long-standing contributing members to the Fund.

1. In the decision of Ellwood v State Superannuation Board of Victoria (unreported decision of Judge O'Shea sitting as the Administrative Appeals Tribunal dated 1 November 1991), the judge dealt with the application of policy where there had been a "cut-off" date.
2. It is necessary to state the facts of that case. Mr Ellwood, the applicant, was appointed to both the Land Valuation Board of Review and an arbitrator under the Local Government Act 1958.
3. A request was made for the applicant to be declared an officer under the provisions of the Superannuation Act. Reference was made to his appointment to the Land Valuation Board of Review but did not contain a reference to his appoint as an arbitrator. As requested on 30 September 1977 it was declared for the provisions of the Superannuation Act shall apply to his appointment to the Land Valuation Board of Review.
4. Approximately 10 years later in 1987, the Superannuation Act 1958 was amended to include in the definition of "recognised service". That Act provided to allow recognition of such additional number of years of service (if any) as the Board determines in respect of a person for the purpose of the definition. That is, the Board was given a discretion to include within "recognised service" an additional period of service which had occurred before the person became eligible to contribute to the Superannuation Fund.
5. Mr Ellwood asked the Board to determine that an additional period of five years of service preceding his appointment be regarded as recognised service under the State Superannuation Act.
6. In order for the applicant to have been eligible for his appoint to the Land Valuation Board of Review, he was required to be a barrister and solicitor or a person having special skill and experience in law and practice relating to Valuations. Further, to be qualified for his appointment as an arbitrator he needed to be qualified to be appointed a County Court Judge.
7. The Board's policy was put into evidence before the Tribunal. Such policy included :

(a) The Board will recognise up to a maximum of five years of full time private sector employment

(b) balance the "significant portion of any pension or lump sums that may become payable as a result of recognising prior service, and on the other hand the anomalies that would be created in rigidly applying existing policies to special and unique circumstances".

1. The Board amended its policies in November 1989 :

... in relation to revised scheme members to provide that industrial experience will not be recognised after the 31st March 1990 and that employing authorities are to be advised that claims received after the 31st March 1990 will not be recognised.

In relation to new scheme members the Board confirmed its decision of the 19th October 1989 that industrial experience would not be recognised for current members from the date of the meeting.

It was further agreed that persons who became new scheme members prior to the 19th October 1989 be given until the 31st March 1990 to apply for recognition of service.

1. On 8 December 1989 the Board sent a circular to personnel managers, all contributing agencies, principals of TAFE colleges, colleges of advanced education and technical colleges. The circular explained the change of policy.
2. However, the circular never came to the attention of Mr Ellwood. When he lodged his application on 21 March 1991, he was unaware of changes in policy or that the Board had set 31 March 1990 as the last date for lodgement of applications to have a prior period of industrial experience regarded as recognised.
3. The question before his Honour was whether Mr Ellwood's position as an arbitrator under the Local Government Act should be recognised under the Superannuation Act 1958. It should be noted that in 1987 that Act was amended by amending the definition of "recognised service" to include "such additional number of years of service (if any) as the Board determines in respect of a person for the purposes of this definition". That is not a dissimilar situation to that which exists today in relation to the discretion in the recognised services provision of the same Act.
4. In that case, there was a question of whether there should be recognition of prior industrial experience for superannuation purposes. The Board changed its policy in relation to this matter to provide :

That industrial experience will not be recognised after 31 March 1990. Prior to that date revised scheme members to whom the Board policy for recognition of prior service may be applicable may apply to the Board for consideration of their cases.

1. Mr Ellwood lodged his application for recognised services under these provisions approximately 12 months after 31 March 1990 (21 March 1991). In considering whether this application should be recognised, his Honour stated at p 8 ff :

In my view the Board was entitled, and indeed required, to establish policies in respect of the administration of the Act and to adopt strategies designed to achieve those policies and to ensure that the decisions and operations of the Board are directed towards achieving its objectives. Indeed, it seems to me that any decision-making body invested with a discretion is entitled to lay down guidelines or policies for the exercise of its discretions and where numerous decisions are called for the exercise of that discretion, it is inevitable that policies and guidelines will evolve and be enunciated. This is necessary and desirable so that its decisions can be consistent and be seen to be consistent ....

However, I accept that in reviewing a decision this Tribunal must take into account all relevant considerations including any policies which have been established by the maker of the decision under review.

1. His Honour also considered the position of Mr Ellwood and as to what he could put forward. At p 12 ff, he stated :

Be that as it may, before me the appellant was given every opportunity to put forward any facts or circumstances which he considered would amount to special or unique circumstances which would make it inappropriate or unfair to deny his application on the basis that it was lodged after the cut off date. In that regard the Appellant relied upon the fact that, at the time he made his application, he was not aware that a cut off date had been announced by the Board and made part of its policy. I fully accept that the Appellant did not know of the cut off date or that it was part of the policy of the Board at the time he put in his application but I cannot see how his ignorance of that part of the policy, at the time he made his application, could possibly amount to special or unique circumstances so as to make it inappropriate or unfair to deny his application because it was late in being lodged. I cannot see how he has been put at any disadvantage because he did not find out about the cut off date at the same time as he was led to believe he was eligible to have prior industrial experience added to his period of recognised service.

In these circumstances I cannot see how his ignorance of the Board's policy, which introduced a cut off point for the implementation of its altered policy, could possibly amount to special or unique circumstances ...

A person in the position of the Appellant has no vested right to have the policies of the Board remain unaltered. Indeed, in my view an applicant might make an application at a point of time when the Board was applying a policy which would ensure the success of his application but on the hearing of the application, and after full argument on both sides, the Board would be entitled to change its policy, and indeed would be obliged to do so if it were satisfied it was no longer appropriate, and on that basis deny the application. (underlining supplied).

1. Mr Lombardi attempted to distinguish the case of Ellwood from the present by saying that each case should be decided on its own facts and the facts of this case were different from Ellwood. He further stated that, in any event, Ellwood should not be followed because it created an unfair situation for the applicant.
2. In my view, Ellwood's case stands for the unequivocal proposition that in exercising a discretion, the Board or the Tribunal in the shoes of the Board should take into account the policy of the Board. The policy is not necessarily the be all and end all but is a factor to be taken into account with all the other factors in deciding whether a period of service should be recognised. The applicant, as I have previously mentioned, has said that the 1980 opting out and the refusal to accept the amnesty should not be taken into account when exercising discretion pursuant to Regulation 14(1).
3. However, because I have found that the applicant did in fact opt out with knowledge of what she was doing in 1980, in my view, that is a proper matter to take into account.
4. Further, while I accept that the applicant may not have known about the amnesty in 1982, I have formed the view that the test of her knowledge should be objective. That is, would a reasonable person in the position of the applicant had known of the amnesty? In light of the fact of the circumstances of 1982, when there was a lack of computers and, as such, communication was at a far more primitive state than it is today, I have already formed the view that the Board did everything reasonable to inform relevant people about the amnesty. Therefore, I have formed the view that a reasonable person in the position of the applicant should have known about the amnesty.
5. Further, I take into account Mr Russell's evidence that there may be approximately 4,746 women in the same position as the applicant in this case. If the applicant's service between 1 July 1982 and 1 July 1988 was recognised, there would be an enormous impact on the Fund, which would cause an inequity in relation to the other members. That is, people who have been paying their contribution for many years would be put at a disadvantage to those in the position of the applicant whose service during this period would be recognised at this time.
6. Mr Lombardi said that each case should be determined on its own merits and that I should have no regard to future applications that may be made by others. Giving no regard to applications that will be made by others should the applicant be successful in this application would, in my view, be disregarding the reality of the whole situation. While of course each matter must be decided on its own merits, the fact that the applicant in this case of having her services recognised, with all the circumstances of this case, would, undoubtedly, create a likelihood that others would seek and may be entitled to similar benefits. If such a thing happened, it would clearly cause inequity between members, ie, an inequity between those who have members since 1982 and those whose services were recognised at this time.
7. It is important that for those that manage the Fund that there should be a limit to unforeseen liability. Putting it another way, as did Ms Doyle, "there needs to be a lid on unforeseen liability". In my view, to allow this application would be lifting that lid on unforeseen liabilities which could be very detrimental to other members of the Fund or a government that it needs to make up the sums that the other members would lose as a result of a recognition of service of those that the Fund is not applicable to in the relevant period.
8. Under these circumstances, I have formed the view that the Board was right in exercising its discretion against the applicant in this situation in relation to the period 1July 1982 to 1 July 1988.

1. I find that the period for which the applicant has sought recognition of service between 1 January 1974 and 27 June 1980 and 27 June 1980 and 1 January 1982 and 1 January 1982 and 1 July 1982 cannot be recognised because such recognition is forbidden by reason of the wording of regulation 14(4)(a) as the applicant was entitled to become a member of a prescribed superannuation scheme in that time. Further, the applicant's service between 1 July 1982 and 1 July 1988 should not be recognised although there is a discretion to recognise the same pursuant to regulation 14(1) because for the reasons I have stated that above, that discretion should be exercised against the applicant. Thus, having come to this conclusion, the decision of the respondent will be affirmed.

TABLE OF ELIGIBILITY AND CONTRIBUTIONS BY STELMACHIW

Not eligible to contribute to Fund by reason of marriage

Arguably eligible to contribute to Fund by reason of changes to Act in 1975: eligibility expanded from 1 July 1975 to include a married woman who married prior to 1/3/75 and who "elected" to contribute prior to 1 July 1975

Ms Stelmachiw was eligible if continuing to contribute constitutes an "election" within the meaning of the amendment.

On the other hand, possibly was not eligible if continuing to contribute prior to 1 July 1975 is not correctly to be treated as an "election" to contribute prior to 1 July 1975.

Married women could opt out of Fund during six month window in 1980: amendment to Act provided could opt out within six months of commencement of amending provision.

Fund evidence is that Ms Stelmachiw opted out and ceased to be a member or contribute on 27 June 1980.

Amendments to s3A of the Act permitted a female officer who was not contributing to Fund to join under six months amnesty between 1 Jan 1982 and 30 June 1982.

Ms Stelmachiw did not join during amnesty and was not contributing to Fund

Not eligible to join the Fund after expiration of amnesty

Eligibility in relation to any other prescribed Fund

Eligible to contribute to MWSF until commencement of Lump Sum Act 1981

MWSF no longer in existence and not eligible to join Lump Sum Fund

Despite possible intelligibility contributing to Fund

Despite possible intelligibility contributing to Fund

Opted out and rec'd refund of contributions 27 June 1980