Superannuation Commission v Sandman [2025] TASSC 48

Superannuation Commission v Sandman [2025] TASSC 48 | Case summary | Zoe

[25]

Identical provisions to reg 105 were considered in Loudon v Retirement Benefits Fund Board [1993] TASSC 144 (s 87 of the 1982 Act) and Elmore v Retirement Benefits Fund Board [2013] TASSC 22 (reg 123 of the 2005 Regulations); on appeal, Retirement Benefits Fund Board v Elmore [2014] TASFC 1, 23 Tas R 36 (Elmore FC). It is established that these proceedings are by way of a hearing de novo, and in practical terms the respondent has the burden of adducing sufficient evidence to support findings of fact favourable to her: Loudon at [4]; Elmore, first instance, at [4].
In Loudon, Wright J dealt with the requirement that the claimed lost right, privilege or benefit must have occurred otherwise than through the fault of the person concerned. It is clear his Honour treated this as involving a question of causation. At [45]-[46] his Honour said causation was essentially a matter of common sense, citing March v Stramare [1991] HCA 12; (1991) 171 CLR 506. (See Mason CJ at 515-516, Toohey and Gaudron JJ agreeing); Deane J at 522-523). Wright J added that the exercise did not involve apportioning fault. The application of the "common sense" test of causation to the requirement of absence of fault in reg 101 is questioned by the respondent. Counsel submitted that the requirement was not akin to a test of causation for liability purposes and that the ordinary meaning of the word "fault" should be applied. Relevantly, "fault" is defined in the New Shorter Oxford English Dictionary as "default, failing or neglect." The Macquarie Dictionary, 8th ed, provides a definition of "a failing; an error or mistake."
As used in reg 101, I think the provision is synonymous with the state of being blameworthy. In any event, I am not sure I understand the point of the argument. There may be a misunderstanding of the view Wright J took. If there is an act, omission or inaction which can be said properly described as "fault", and fault has a causal connection with the loss of the right, privilege or benefit, it cannot be said that the loss was otherwise than through the person's fault. It is the word "through" which assumes significance. It is correct, as counsel observed, that what Wright J said in Loudon was an observation, but it has persuasive quality, and I propose to adopt the same approach. It was suggested that in Elmore, Blow CJ took a different view to Loudon, but the passage in the judgment was not identified and I cannot see where his Honour said anything inconsistent with it.
As to what is involved in the phrase,"right, privilege or benefit", this was addressed by Blow CJ at first instance in Elmore (above). At [30], his Honour said that the word can have a variety of meanings. His Honour cited In re KD [1988] AC 806 at 825. In the relevant passage Lord Oliver said the variety of different senses can be both popular and jurisprudential. In Elmore FC at [50] I summarised the remainder of the passage as follows: "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 of or aspiration to a social order."
In Elmore FC, the parties accepted that the word "right" would mean a just claim whether legal, prescriptive or moral, or something is due by virtue of a just claim. "Privilege" was suggested as meaning a right or immunity enjoyed by a person beyond the common advantages of others, or the grant of a special right or immunity, while "benefit" meant a payment or other assistance, or anything that was for the good of a person. I think the agreed position in that case is entirely appropriate. Plainly, there is a degree of overlap. A "right" can involve an ability to take advantage of a process as provided for in relevant legislation, or a contingent or inchoate right: Elmore FC at [13], [60]-[61].
It is no doubt correct, as Blow CJ noted in Elmore, first instance, at [30], that the regulation should be given a beneficial interpretation, and not a narrow or a restrictive one. But any liberal or beneficial interpretation must be one that falls within the confines of the actual language employed, and one which is allowed by a fair meaning of the words used: Elmore FC at [9], [49]. The ability to choose a construction which promotes a beneficial purpose exists only insofar as any question of construction presents a choice: Attorney-General (Tas) v CL [2018] TASFC 6, 28 Tas R 70 at [37].
Lastly, it does not necessarily follow that because a person has lost a right, privilege or benefit through no fault of their own, that it is open for the Commission to grant relief. There remains the requirement in reg 101(1)(b) that it is equitable that the person be allowed to have the enjoyment of the right, privilege or benefit. That is a broader consideration, and one which I described in Elmore FC at [69] as a "controlling mechanism" which provides an overriding requirement for equity. "Equitable" can be taken as meaning characterised by equity or fairness; just, right or reasonable. Considerations of these things must occur in the broad context of the operation of the Scheme.
In these proceedings the respondent advances six "lost right claims". (I will adopt the manner of reference as used by counsel and refer to claims in that way, and by number.) The first, lost right claim 1, is the claim in respect of the starting date of the respondent's membership of the Scheme, the contention being that it should be 1 January 1981. Lost right claim 2 relates to the decision by the Board in September 1989 that the respondent's contributory status ended on 10 September 1989. This was because of the Board being advised that the respondent had become a permanent part-time employee. By way of the definitions in the 1982 Act, such a person was not an employee for the purposes of the Scheme. Lost right claim 2 is first to be determined primarily based on the construction of the relevant definitions in the 1982 Act. If the respondent succeeds in respect of lost right claim 2, there is no need for me to decide lost right claims 3 to 6.
For the reasons that follow, I am satisfied that the Commission has made a correct decision in respect of lost right claim 1 and will make a declaration accordingly. However, I find for the respondent in respect of lost right claim 2. I will set aside the decision relating to that claim and make a decision in substitution. Although, as I have said, in that situation there is no need for me to make a decision about the remaining claims, in discharge of my obligations I will say something about them.

[28]

The brochure in evidence, said to be that referred to in the letter, comes from the documents before the Commission at the hearing. It is entitled "Membership and Contributions" and is stated to be for employees who commence on or after 1 July 1982. There is no argument that it was the brochure at least referred to in the letter. The respondent does not dispute receiving the letter and the Rate of Contributions form. The form signed by her on 25 February 1985 is in evidence. Its receipt by the Board was acknowledged by letter to the respondent of 12 March 1985. She elected to contribute at the rate of 2.75% of salary, being the lower rate for 40 years' service. It is the receipt of the brochure which is the issue.
Part 2 of the brochure deals with the "Membership of Fund". Part 2(d) has a heading in bold type; "Right of Trainees, Apprentices and Students to Purchase Recognition of Service". In short, it advises that student teachers and others who were not regarded as permanent employees are entitled to purchase service retrospectively when they become permanent employees. Such persons must, within one month of becoming a permanent employee, advise the Board of the intention to pay the contributions due in respect of the whole period of their training, either in a lump sum or over a period of time not extending two years. As is shown below, that advice summarises the practical parts of the provisions of ss 27(1) and (2) of the 1982 Act. The brochure also contained advice that the Superannuation Branch of Treasury could be contacted for any enquiries about the Act.
Section 27(1) enabled the respondent, as a student teacher, to elect to pay contributions for her studentship period. There was a period of one month, or such further time as permitted by the Board, in which to make the election. The method of paying the prescribed contributions for the retrospective purchase was set out in s 27(2); a lump sum or over a period not exceeding two years as the Board approved, subject to conditions as the Board imposes, including the payment of interest. Section 27(3) provided that on making an election, the person was deemed to be an employee from a date not earlier than that on which continuous service as a student teacher commenced, and deemed to have entered into an arrangement under subs (2) for the payment of the prescribed contributions.
It is common ground that in the period following the respondent's acceptance into the Scheme, she had a right to make the election under s 27(1) of the 1982 Act. Although nothing turns on it, for the sake of completeness that proposition needs to be explained. The respondent may still at this time "purchase" the years of her studentship but on, and with, less advantageous terms consequences. Accordingly, the right is properly confined to the right under s 27(1) and it is not contentious that that right has been lost. The primary issue is whether it was lost otherwise than through the respondent's fault. On the authority of the Elmore decisions, the respondent relies on the proposition that the failure of the Board to notify a person of a right under the Scheme, or an inadequate explanation, can amount to satisfaction of the requirement of the "absence of fault" requirement. That can be accepted - see Blow CJ, first instance, at [34]-[38] - and the Commission does not argue otherwise.
The respondent addresses the receipt of the brochure in her primary affidavit in these proceedings sworn on 6 February 2023. In the first passage, she says that when she joined the Fund, she does not recall being invited to purchase eligible service. She has not seen any evidence of any such invitation on the Board file or that of the Department. She says she first saw a version of this brochure - the 1992 version - as part of RTI disclosure, which seems to have been in about 2019. Her position is that had she received "an invitation "to purchase past service, she would have done so back to 1 January 1981.
In the same affidavit, she later refers to the receipt of the letter of 7 February 1985, the enclosed election form and the action she took to elect the 2.75% contribution. This she did on the advice of a friend. She says, "I doubt I then read the circular or brochure as I was focused on my teaching demands." [My emphasis] She says her knowledge of any provisions that would have permitted her to purchase her studentship years comes from much later obtained RTI documents but the "letter"from the Board made no reference to that.
In cross-examination, the respondent first maintained that she has no memory of receiving the brochure and had not seen it until the RTI process. She confirmed the process she went through to make the contribution election, but said she had no recollection of receiving the 12 March 1985 letter of acknowledgement. Having been taken through the terms of section 2(d) of the brochure, the respondent was asked whether she suggested that, if she received the brochure, she had not been told about the entitlement to purchase previous service. Her answer and what followed is set out below:

[34]

Within a question or two, after being asked whether she looked at the four rates of contribution as discussed in the brochure[1] the respondent said, "I didn't look at the brochure. I didn't - I don't recall the brochure at all."
As put in closing, the case for the respondent is based on her evidence that she "does not recall being told about the option to elect." That has the usual ambiguity which attaches to that expression. It can either mean the person does not have any recollection one way or the other, or in a more colloquial sense, it can be taken as a denial. I will assume counsel means the latter. The Commission's case is that the respondent was aware of the election but chose not to make it, a position which is consistent with her choosing to contribute at the lower rate;[2] alternatively, that the respondent did receive the brochure and, as she said, just put it to one side.
The question of whether the respondent did or did not receive important documents is one that arises in respect of later claims. Counsel for the Commission was critical of the respondent's credibility, citing (among other things) the respondent's acceptance of receipt of correspondence proven of being responded to or supportive of her case, or of a much less important nature, while attributing blame for lost mail to the administration of various schools and at times to the general postal system. Save to say that generally the respondent was non-responsive to many questions, I do not need to take the issue of her credibility any further at this stage.
In respect of the present claim, I take the view the respondent's evidence was equivocal and unconvincing. I am not persuaded that the brochure referred to in the letter was not, in fact, with it. The information about the right was readily understood. I am not satisfied that the failure to make the election was otherwise than through the fault of the respondent. I think it is probable that she was either aware of the election and simply did nothing about it or simply failed to read the brochure, something which I do not consider a reasonable thing to have done in the circumstances. This claim is not made out.

[39]

The further facts, about which there is no dispute and as I find them to be, are as follows. In about July 1989 the respondent applied to the Department for maternity leave. That was granted for the period 9 November 1989 to 25 May 1990. For about two months before being due to start that leave, the respondent suffered illness because of her pregnancy. On the advice of her obstetrician, she arranged with the Department to reduce her working hours. There is no documentation in relation to the process which took place, but there is a documented outcome by way of a form entitled "Staff Movement Schedule to Personnel Branch" dated 27 September 1989. Within that document, and against the heading of "Workload Variation", the respondent's then current full-time hours were set out as 1.0, with "NEW" being 0.6. The variation is noted as being from 11 September 1989 to 8 November 1989. In a remarks section there is a note, "Decreasing TO .6 of FULL TIME", with that time to be split equally between three schools: Railton, Wesley Vale and Spreyton.
Up to and including Friday 8 September 1989, the respondent had been at both East Devonport Primary and Railton Primary with a 40/60 spilt. She was on sick leave for the week commencing 21 August 1989 after which there was a two-week school holiday break, taking things through to 11 September 1989. The Department wrote to the respondent on 5 October 1989 advising that following her current period of leave she would resume duty at Railton Primary School "as part-time teacher on 11/9/1989 to 8/11/1989."
Towards the end of her maternity leave the respondent took leave without pay until 17 September 1990, at which time she returned to work at Spreyton at 40 per cent of a full-time workload. Since then, apart from full-time working loads in the periods 5 August 1999 to 6 September 1999, and from 22 September 2003 to 18 December 2003, the respondent has worked at various percentages of a full-time load, all of which were 40 per cent or more.
On 20 October 1989, the Board wrote to the respondent. The manager stated he had been informed by the Department that she was employed "in a part-position" with that Department. The letter continues:

[42]

The letter contained no explanation as to why employment in a "part-time position" would lead to the situation of having to make an application to remain a contributor. Nor is there is any explanation about why the respondent would be deemed to be an employee.
The respondent relies on the position the Department has taken about the nature of her employment. The evidence about this primarily comes from the affidavit of Paul Gourlay, the Department's Director of Human Resources. In summary, he says that the respondent was originally appointed as a full-time permanent employee and there is nothing in the Department's files to suggest she has changed her status[4] or that she requested to be an ongoing part-time employee. Mr Gourlay notes that while her workload has been predominantly part-time since 1989, the respondent has returned to full-time work for periods in 1999 and 2003. He believes those periods are likely to have been associated with staffing requirements at the school at the time. He says the respondent's current status remains that of a permanent employee "who holds or 'owns' full-time status" but she is currently undertaking duties on a part-time basis, noting that she is presently on extended leave without pay.
In relation to the "Staff Movement Schedule to Personnel Branch" document referred to above, Mr Gourlay says this was an internal document used at the time by the then Personnel Branch to provide confirmation of changes for an employee to the then Salaries Branch so that any pay-related changes could occur. He says the document primarily confirms the respondent has had a workload variation for a set period, with the 0.6 workload being split between three schools.
In his evidence, Mr Gourlay confirmed that his review of the respondent's file did not reveal anything to suggest her status as a permanent full-time employee had ever changed. He said it is accordingly correct to say that in October 1989, she had that status. He also confirmed that for women who went on maternity leave, even though they were on leave of absence, the employment status was unchanged and remained so on their return. Mr. Gourlay referred to the respondent's appointment under State Service legislation with status being determined under that legislation. The Tasmanian State Service Act 1984 provided for the appointment of permanent employees and temporary employees but not otherwise.[5] Such things as part-time work for permanent employees, leave entitlements and the like were done under such things as Ministerial directions, Commissioner's "Employment Instructions" directions and industrial awards.

[43]

It is common ground that, as the respondent highlights, the only change of circumstances that could have brought about the Board's determination of permanent part-time employment was the workload variation which was approved by the Department for that period of eight weeks and two days starting on 11 September 1989. As I mentioned, the respondent's case is based on the evidence that as far as the Department is concerned, the respondent was and still is regarded as a full-time employee. The argument is squarely put on the basis that the respondent was never, and still is not, a permanent part-time employee. In October 1989 she was employed in a permanent full-time capacity and is still so employed. More particularly, the argument is she did not cease to be a permanent full-time teacher, so she did not cease to be an employee as defined in the 1982 Act and, because of s 23(1), she compulsorily remained a compulsory contributor.
To this point, I would accept the Commission's argument. Correctly in my view, Mr O'Farrell submits that irrespective of what the Department's position is or may have been, or how the respondent's position may have been described under the Tasmanian State Service Act 1984, the terms of the 1982 Act prevail. Having looked at both Acts there is nothing, relevantly at least, to suggest there is any inconsistency or contradiction in their respective areas of operation. The State Service legislation deals with the general matter of employing people and how that is managed. It deals with such things as appointments, promotions, retirements, and transfers; secondment and redeployment, along with discipline and conduct are also addressed. As the preamble says, the 1982 Act concerns retirement benefits for persons employed by the State or by State authorities. It specifically and exclusively deals with the Retirement Benefits Fund and contributions to that Fund. It has its own definition of "employee", and a definition of permanent part-time employee" not found in the Tasmanian State Service Act.
The Commission submits that the application of the definition of part-time permanent employee plainly results in the conclusion reached by the Board in 1989. It is a simple proposition that the respondent was a person who was then, during the year, required to work for at least 40 per cent of the time she would be required to work if she was a full-time employee, and accordingly she was not an "employee". Mr O'Farrell observed that the legislation was not concerned with the reason a person was required to work for at least 40 per cent of full-time hours.
However, in oral submissions, Ms Bloomfield argued that the 1982 Act definitions do not support the Commission's stance. She raised the issue of Parliamentary intention, and referred to the Minister's second reading speech in relation to what became the 1982 Act. There is a part that dealt with "Pro-rata Benefits for Permanent Part-Time Employees". The Minister referred to the need for any employee (obviously using the non-definitional sense) to work constantly for the equivalent of at least four-tenths of the corresponding number of full-time hours. The Minister said it was anticipated the provision of these benefits for permanent part-time employees would be of particular relevance to the teaching service, with one full-time position being capable of being broken down into two part-time positions, which will spread the teaching burden and assist the employment situation. The Minister continued: "Insofar as instances occur when an educational institution requires a fractional teaching position rather than a whole position, savings in salary costs can be realised."
In short, counsel submits it is difficult to accept that the definition of permanent part-time employee was intended to cover the type of short-term arrangement that had been put in place for the respondent. Counsel accepts that, based on the wording of the definition, an agreed reduction in hours for a period of 12 months would make a person a permanent "part-time employee", but submits what was contemplated by Parliament was a stable long-term period of part-time hours.
On this question of the significance, Ms Bloomfield for the respondent observed, correctly in my view, that retrospective reliance on the entire period of the respondent's employment from 9 November 1989 is not open as a possible way to remedy what occurred on 20 October 1989. It was at that time when the respondent was determined not to be an employee, and her compulsory contributor status ended. What happened after that were then unforeseen events.
This brings me to the point of statutory construction. Implicit in the Board's determination in October 1989, and in the Commission's approach, is a strict interpretation of the definition. In my view, that position along with the respondent's submissions about the proper approach to the definition to the opposite effect, mean the focus must be put on the meaning of the phrase "during a year", as they appear within the words "a person who is during a year required to work in an office or position ..[etc]". That phrase was not the subject of any scrutiny in the arguments.
The preposition "during" in relation to a period of time or even a course of things has been the benefit of much judicial attention. As Rich J observed in Ogston v Ogston [1935] HCA 58; (1935) 53 CLR 526 at 529, cited in Maney v Maney [145] Tas SR 15, "In all instruments referring to time, the word 'during' is a fruitful source of ambiguity." His Honour explained that the word is capable of meaning at some time or times between the beginning and the end of the period, and is also capable of meaning the whole of that period. That is, it may mean "within" or "throughout": Maney at 16 per Morris CJ (See also Hutchinson J at 18). The Macquarie Dictionary, 8th ed, provides a primary meaning of "throughout the continuance of", and a secondary one of "in the course of".
It follows that the text of the definition does not provide as clear a meaning as it might. Although ambiguity need not emerge before examining context and purpose, the definition's meaning must be effectively determined by having regard to those things. See CIC Insurance Ltd v Bankstown Football Club Ltd (1999) 187 CLR 384 at 408; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27 at [47]; Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9, 253 CLR 531 at [65]- [66]. Before considering those matters in respect of the 1982 Act, there are some authorities which may provide guidance.
At the risk of a digression, in earlier times there appears to have been a lesser degree of ambiguity attributed to the word "during", at least when used in a formal or legal setting. R v The Inhabitants of Anderson (1846) 9 Ad & El, 115 ER 1428 concerned a statement made in a ground of appeal that a person had served in particular offices for specified years, "during which years he was an inhabitant and resident". Lord Denman CJ said the words "during which years" appeared, in their strict and proper legal sense, to mean for the whole of the years, and that the other meaning, "at some time in those years" was colloquial and incorrect. Coleridge and Whiteman JJ agreed.
Anderson was considered in R v Clixby (Inhabitants) (1847) 11 JP 568 where the phrase used was in respect of a hired servant who, "during" a year's service from a date had resided in a particular parish. The same conclusion was reached. Lord Denman also presided. His Lordship said he did not think the Court ought to stop and inquire whether there was any other less correct, though more popular sense, which the expression may have been intended to convey.[6] Patteson J agreed, saying that the natural meaning of the word "during", when used in such passages as were before the Court was "during the whole." Interestingly, Earle J agreed about the issue to be decided, but said it was "generally found that language is capable of more meanings than one", and context must decide which is to be preferred.
In any event, more recently, in Davenport (Inspector of Taxes) v Hasslacher [1977] 3 All ER 396, Slade J considered the term "during the period of ten years" in capital gains taxation legislation. His Lordship addressed whether relief from capital gains tax required that a company be considered a family company during the period of ten years ending with the taxpayer's disposal of shares, or if it sufficed that it was categorized as such at any time during that period. At 400, his Lordship said:

[45]

In Australia, Bagus v Minister for Immigration, Local Government and Ethnic Affairs (1994) 50 FCR 3 concerned immigration laws relating to an application for an entry permit which provided for disqualification if the applicant had had contact with an overseas near relative during a reasonable period preceding the application. At 402-403, Whitlam J considered the two meanings of the word "during", noting the two ordinary meanings as provided by the Macquarie Dictionary (above). His Honour said, "I think that the natural meaning in the context of the word 'during' is that of 'throughout the continuance of'." As to context, his Honour said the provision was designed to deal with compassionate grounds for the grant of an entry permit, and it would be extraordinary if an applicant's contact under the provision were not assessed up to and at the time of the application being lodged.
There is also Tilney v Tilney [1968] HCA 32; (1968) 118 CLR 526. The Matrimonial Causes Act 1959 - 1966 (Cth) contained a provision for dissolution of marriage on the ground that "since the marriage, the other party has... during a period of not less than a year, habitually been guilty of cruelty ... ". At 528, Kitto J with whom Taylor and Owen JJ agreed, held the provision contained a time element which specified the minimum period as the duration of the habitual cruelty; the requirement being that it must have endured for at least one year.
Although not a decision of a court of superior jurisdiction, I would add a reference to Evans v Oxford Shop Pty Ltd (No 2) [2023] FedCFamC2G 663, 380 FLR 146. The relevant provision was contained in the Fair Work Act 2009 (Cth) and was to the effect that an employer gave to an employee a direction of a particular statutory type, if they directed the employee to perform duties during a period at a place that was different from the normal place of work. At [40] Judge Lucev held that "period" was intended to be of a specific and limited duration, and the relevant direction had to be one to perform duties for the whole of that period. Accordingly, a direction to do a job at a certain location with no period being specified did not satisfy the legislative requirement.
For the following reasons, it is inevitable in my view that the respondent succeeds. I hold that by the action of the Board in October 1989, the respondent has lost a right, privilege or benefit to which she otherwise would have been entitled. It does not seem to matter whether it is construed as a right as an "employee" to be a contributor, or a benefit derived from contributions made compulsory by being an "employee" but I doubt that the word "privilege" is appropriately used in the present situation.
There are two immediately apparent things which cast very serious doubt on the Commission's position. The first is that the period for which the requirement to work part-time, as defined (more than 40 percent of a full-time workload but less than 100 per cent), is irrelevant. It could be days or weeks. Second, the words "during a year" are completely superfluous and have no meaning. If, for instance, as essentially occurred in this case, a person is to work for a two month period on a part-time basis, that must necessarily mean that there is a requirement to work on that basis "during a year". As a matter of the simple concept and precepts of time, it cannot mean anything else. By definition the two month period is "within" a year". It does not matter from when the calculation of a year commences. It follows that the construction contended for gives no meaning at all to the phrase "during a year."
It is very well established that courts must strive to give meaning to every word of a provision, and are not at liberty to consider words, phrases or sentences as superfluous or insignificant, if by any other construction that can be made useful: Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405 at 414; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355 at [71]. The way in which meaning can be given to the phrase is to construe the definition so that the requirement to work the defined part-time workload must endure for at least a year. That might have caused some administrative difficulty but to interpret the definition otherwise produces what I regard as well-nigh an absurdity.[7] Administrative difficulties of equal, if not greater, proportions arise on the Commission's construction. That interpretation allows for persons employed on a part time basis for very short periods of time - literally even one day would suffice- to become permanent part-time employees.
That leads to a consideration of the question of purpose. This is beneficial legislation. No doubt the success or otherwise of a superannuation scheme such as the RBF Scheme can best be measured by the use which contributors make of it. A construction that deprives contributors of their status as an employee because of very short periods of part-time work as defined, is plainly not a beneficial one. It does not sit happily with the Minister's second reading speech, which appears to attribute significance to the category and role of permanent part-time employees. Conceptually, what was outlined in terms of its intended use would not be as readily achieved if the category included employees deemed not to be "employees" because of short periods of part-time work.
It is the task of the court to interpret the words used by Parliament, not to divine Parliament's intent; that is, courts must determine what Parliament meant by the words it used and not determine what Parliament intended to say. Parliamentary intention is as expressed in the legislation: Harrison v Melhem [2008) NSWCA 67[2008] NSWCA 67; , 72 NSWLR 380 per Spigelman CJ at [16]; and Mason P at [159] - [161]. I have spoken about the relevant wording. The construction I favour more readily gives meaning to the expression "permanent part-time employee" when read as a whole. Generally, that construction should be preferred as an interpretation that promotes the purpose of the Act as against one that does not.: Acts Interpretation Act, s8A.
The submissions for the Commission, both written and oral, refer to the fact that the respondent had not, except for two short periods, been working full-time hours since her return to work on 17 September 1990. I am not sure I understand the suggested importance of this. Both sets of submissions highlight the "critical" date of 11 September 1989, which was the starting date of the period of eight weeks and two days of working a 40 per cent full-time workload. It is then, it is said, the reduction in workload had been approved and as a consequence, she had ceased to be an employee within the meaning of the 1982 Act and was not required to continue to remain a member of the Scheme.
The agreed position is that this is a hearing de novo,[8] but I note that in its reasons the Commission did not refer to any period or periods other than that commencing on 11 September 1989 to establish the proposition that the respondent was no longer an employee within the meaning of the Scheme at that time. Rather, it noted the workload on the return to work on 17 September 1990 as part of the factual background. Nor is there any suggestion that, because of one or other of the two short periods of full-time work following the respondent's return to work, the respondent regained the status of an employee such that she was then compelled to be a contributor. This might be expected to happen if the Commission's construction is correct. To be fair, I should add that the argument before the Commission on this lost right claim was centered on the facts.
Ms Bloomfield for the respondent submitted, correctly in my view, that retrospective reliance on the entire period of the respondent's employment from 9 November 1989 is not open as a possible way to remedy what occurred on 20 October 1989. It was at that time when the respondent was determined not to be an employee, and her compulsory contributor status ended. What happened after that were then unforeseen events. Counsel for the respondent told the court, without dissent, that the effect of allowing her to enjoy the right or benefit was to permit her to gain access to past periods of eligible service by the purchase of those periods on more favourable concessional terms than are otherwise available. Any established period of service before 1 July 1994, (the commencement date of the 1993 Act), also gives access to a more generous conversion factor in the calculation of the retirement benefit. Counsel for the Commission did not submit that to permit the respondent to exercise the right or to grant the benefit would be futile.
The respondent's right or benefit having been lost in the circumstances outlined, it must mean that it is equitable that she should be allowed to have the right or enjoy the benefit, however it is best described. As I mentioned earlier, the agreed position is that the resolution of this claim in the respondent's favour means that it is not strictly necessary to deal with the remaining claims. What follows is to be read accordingly.

[46]

This claim is closely linked to the previous one. The Board having determined that the respondent was no longer an employee and not a compulsory contributor, the respondent could have elected "to become a contributor" on the basis she was a permanent part-time employee. That election was provided for in s 6(1)(c) of the 1982 Act. The respondent's case is that what was lost was the right to make that election, or at least the benefit of being able to do so. The claim is put on the basis that the Board's communication with the respondent in around October 1989 "was incomplete, error-prone and inadequate". The respondent says had she known of the right to elect (to continue) to contribute, she would have done so.
Central to this issue is the letter of 20 October 1989 referred to above, and the enclosed form. Before the receipt of that letter, (sent to the respondent's private post office box), the Board apparently sent a letter dated 28 August 1989, addressed to her at the East Devonport Primary School. At the top of the letter Mrs Stanfield was noted as the enquiries contact, with a 'phone number provided. The letter refers to notification from the Department that the respondent was to proceed on leave without pay from 22 March 1990. That was when her maternity leave was due to expire. It contains an explanation of the option of deferment of contributions while on leave without pay, available by way of s 26(3) of the 1982 Act. It states that a condition of doing so is that upon resumption of duties, double the normal contributions will be deducted until the arrears are cleared. Three alternative options are set out; the payment of contributions in advance by way of a lump sum, payment during the period by a bank or third party, and payment in arrears by lump sum plus interest. The letter refers to an election form which the respondent was asked to complete and return.[9]
The respondent says that she did not receive this letter. She says, and there seems to be no dispute about this at least, that she did not return to the East Devonport Primary School after 16 August 1989 because of illness and school holidays. The copy of the letter in evidence contains a handwritten note "R/S J. Stanfield 28/9/1989". The respondent argues that "R/S" means return to sender, but I think that is obviously not correct. Clearly what has happened is that Mrs Stanfield, or someone at her direction, noted for the file to be resubmitted in one months' time. Otherwise, it could only have been that someone in the school has opened the respondent's mail, made the direction "return to sender", and inexplicably wrote a date one month hence. (There is a follow up letter of 10 October 1989 which notes the lack of response to the letter of 28 August, and with the same handwritten notations on it with a resubmit date of 10 November 1989.)
The next thing before returning to the 20 October letter is an undated handwritten note which is headed with the respondent's name and her RBF identification number. It says, "Send letter re total conts to date; election form for part-time - since 11/9/89 .60% & info sheet about Fund." There is a note of the respondent's house name and post office box address. It is common ground this note was on the Board's file. The handwriting looks similar to that on the letters. Although undated, the details noted to be sent, when compared to the first paragraph of the 20 October letter, indicate that the conversation happened before that date and the letter is in response to it. The first paragraph of the letter, not previously set out above, reads:

[51]

There were four options then set out, one under the other, next to boxes to be ticked. The options were:
- "To join the Retirement Benefits Fund
- NOT to join the Retirement Benefits Fund
- To remain a contributor
- NOT to remain a contributor" [Capitals in original]
The respondent ticked both the second and fourth boxes although, of course, in her circumstances it was only the third and fourth options which were relevant. The first and second options related to s 5 of the Act, which covered persons who were not employees but who were employed in a temporary capacity and a certificate had been issued by the appropriate authority, stating they were likely to remain in employment for at least three years.[10] Both sections refer to an election to "become a contributor" language which is not reflected in Form 6. I will come back to this.
The issue is whether the respondent, otherwise through her own fault, lost the right to elect to "become a contributor "under section 6 of the 1982 Act, although in practical terms in her case, that would mean continuing to be a contributor. In short, the respondent's case is that at the time, she wanted to defer contributions, and in a state of confusion contributed to by her illness, she completed Form 6, not understanding the consequences. This is first covered in her affidavit. She says she now understands from the letter of 28 August 1989, which she says she did not receive, that at the time it was permissible to defer contributions.
She says Form 6 was confusing in her circumstances. The form stated she was entitled to join the Fund but she was already a member. It appeared to her to refer to the advice in the accompanying letter, but the letter did not require her to get any further explanation before proceeding. It did not include the option of deferment and did not set out what the rights were under the sections referred to. She did not think that completing the form she did would result in her withdrawal from the Scheme. It contained an acknowledgment her rights had been explained, but she did not understand it was referring to a meeting or discussion with a responsible officer.
The respondent says she did not realise that it would be taken she was permanently withdrawing from the Fund, or what consequences would follow from her selection; the options ticked were the ones she thought relevant, but she did not realise the consequences. As to the note of the phone call, the respondent says she does not have any recollection of it but accepts there was phone call before 20 October 1989; she is certain that there was no mention during such a call, or any other time, of the ability to defer contributions as set out in the letter of 28 August 1989. The respondent adds that she believes she called to advise of a change of address rather than enquire about the balance in her account, but at the same time says she cannot "recall making this phone call."
The references to deferral appear contradictory. Initially, there is a statement that seems to clearly suggest the respondent did not know of a right to defer contributions until much later. That is confirmed by a further statement that at the time of the "exemption", (by which the respondent seems to mean being treated as no longer an employee), she did not know about the option to defer contributions. However, further on in the affidavit, she says she ticked the box to remain a contributor but wanted to "suspend" contributions until she returned from maternity leave. In cross-examination the respondent maintained that her plan was to defer contributions, and intimated she thought completing the form in the way she did would achieve that. I suppose these positions are reconcilable. The respondent may have wanted to defer, but did not know that it was legally open until later. But of course, at the time, any question of deferral could only have arisen after an election to "become a contributor" had been made.
In her affidavit, the respondent points out that the letter of 20 October 1989 does not contain the deferral options listed in the letter of 28 August. I do not find that surprising given that, as I have just noted, two quite different scenarios were being addressed. As far as the Board was concerned, there was a change in circumstances before the 20 October letter. By 20 October, in the Board's view of things, deferral had fallen by the wayside and would only again arise after an election to contribute was made.
In cross-examination, the respondent confirmed the 20 October letter was addressed to her post office box address. When it was suggested she received it, she said she had no knowledge of it; they were having a lot of problems with their postal service at the time, and both the Department and the RBF were using incorrect addresses. She wanted to continue with an explanation of various addresses being used, but I pointed out that the question was just about the receipt of the letter. When asked whether it was a categorical "no" that she did not receive it, she said, "True - no, definitely not. And it was during - no hang on, just let me think about this." When asked to read the first paragraph she again said she needed to think about "this one" because it went to her post office box number, and then replied, "Yes, I would have received this letter." She acknowledged that this was because it referred to a recent telephone enquiry from her, but said she had no memory of making it.
Mr O'Farrell took her to the part of the letter which referred to the possibility of continuation of contributions. The following exchange occurred:

[59]

Shortly after, the respondent repeated she was simply looking to postpone payments. In explanation for the ticks, she said she was already a member so did not need to tick to join, there was no box to tick for deferral so, because she wanted to defer, that is why she ticked the box "not to remain a contributor". When it was suggested that Mrs Stanfield was just on the other end of the phone to answer any enquiries, the respondent unresponsively said "There is nothing in that letter that you have shown me that says that she said anything about things she could explain ... the options I could have had. There is nothing in that letter." Counsel pointed out that the phone number was on the letter; the respondent said that she had "already spoken with her". The respondent repeated that at the time she wanted to pause contributions, and without any other guidance, she filled out what she thought was the form that she needed to complete.
When it was put to the respondent that she made the election "to leave" the Fund in the full knowledge that she was leaving and withdrawing all contributions, she said that was incorrect, that she had made an uninformed decision because she did not have "any other information at the time." She said it was a pressing time for her.
In broad terms, and with due respect, I think there is cause for a fair degree of skepticism about much of the respondent's evidence, particularly as to the documents received or not received. None of the documents in evidence are hers, in the sense that she has produced them from a file or material kept by her. All documents are derived from Departmental and Board/Commission files. The respondent had extensive Right to Information access to and the benefit of documents exhibited to affidavits filed in these proceedings. I have a strong sense that a lot of what the respondent says she did or did not do is a favourable reconstruction based on the documents about matters of which she has little to no real recollection.
For reasons which will become apparent, I do not think the issue of the receipt of relevant correspondence has a critical role to play in the determination of this claim, but it is relevant to credibility generally. One can accept some glitches in administrative systems, but the respondent seemed eager at every opportunity to explain a range of difficulties which would suggest non-receipt. These ranged from school administrative problems - which included children being left in charge of relevant duties - to suggestions that staff were incapable of making sure letters were passed on to the school where the teacher was then teaching or predominantly teaching, to Australia Post inefficiencies in relation to the home address. All of this needs to be looked at in light of the fact that in the late 1980's ordinary mail communications were the predominant form of contact although facsimile machines were in use.
Indeed, Mr Gourlay's evidence is that at this time the main form of communication from the Department to employees was hard copy correspondence, either addressed to the employee at their work location, or on occasions to their home address if they were absent. It was the practice in schools in the 1980s and early 1990s for the hard copy correspondence to be displayed on staff noticeboards if it was general correspondence, and/or placed in individual staff member's pigeonholes. This was carried out by office administrative staff at the particular school. In that situation, I think it reasonable to have expected that there was a high degree of application to the task of ensuring mail deliveries and that correspondence to teachers who had moved to other schools was passed on. If not known, I cannot imagine any difficulty at all in ascertaining the person's new school.
The following considerations would lead me to resolving this claim against the respondent. Irrespective of whether the respondent received the 28 August letter, the respondent's asserted state of mind seems be that, at the time of the 20 October letter, she could suspend, postpone or defer contributions while on maternity leave. (She may have been using that expression to cover all leave, although the entitlement to defer relates to the leave without pay component.) Reference was made to teachers known to her who went on maternity leave and made no contributions, but the respondent said she did not find out until later whether they deferred or left the Scheme.
I mentioned earlier an apparent contradiction relating to the respondent's state of mind. There are also the answers to the questions set out in par [76] above. Taken literally, they mean that even after reading that letter the respondent "knew" she could not make contributions, (with source of that knowledge or understanding not clear), but then completed the form thinking it was to defer the liability to contribute. In making these comments I do not lose sight of her pregnancy related illness at the time, nor her present condition which necessitated regular breaks during questioning, and I make due allowance.
I think it unlikely that the letters of 28 August and 10 October were not delivered even though addressed to the East Devonport School as they were, but there may have been delay. Certainty, whether the 10 October follow-up letter was delivered before the telephone conversation of around 11 October is a moot point but, in any event, something triggered what I am satisfied was a call by her to the Board. This telephone conversation is important. There was most likely a request for information about contributions "to date" That implies consideration of withdrawal. The reduction in hours from 11 September 1989 is noted, and although the section of the Act may not have been mentioned, I am satisfied form the note that there was discussion about the consequences of that reduction in terms of being a contributor and the necessary election to continue as one. The respondent's evidence about the fact of this call and its possible content is quite unconvincing.
That said, I would accept as valid, to a point, the criticisms made of the letter of 20 October. The introduction to the topic of a part-time position in terms of, "Also, I have been informed ..." is strange, given what was mentioned in the telephone conversation. The concept of "election" was not mentioned in the letter. But the position remains that the reduction in hours was mentioned, as was the possibility of continuing to contribute, along with an "application to be a contributor as a part-time employee". I also accept that the formatting of Form 6 itself is unhelpful. (RBF Form 6 is a modified version of the form prescribed for this situation by the 1982 Regulations; Form 11.)[11] The two sections, ss 5 and 6, are different in their operation and effect as far as what elections need to be made. Form 11 makes provision for the person to "hereby elect to become a contributor...", the election being the expression used in both sections. Form 6 does not. It introduces four options instead of the sole one of the election to become a contributor.
However, the state of the documents can be contrasted with the position in Elmore. Blow CJ found that Mr Elmore did not receive a letter advising him of his right to join the Scheme under s 5 of the 1982 Act but said that in any event it was inadequate to explain situation. There were two critical aspects of the section which it did not mention such that his Honour did not think Mr Elmore could be said or been at fault if he had received the letter, and not then set about trying to become a contributor: see [36]-[37]. Here, it is to be remembered the letter followed the telephone conversation. An "election' is mentioned in the note. The overall effect of the communications, including the letter and form, adequately conveyed the position the respondent was in. If there were any doubts, telephone assistance was offered
I should add a comment about the reference in Form 6 to a discussion with a "responsible officer". That term is defined in the 1982 Act as a person employed in an agency and who was assigned the duty of conducting the business of the agency in relation to the Fund. There is no evidence about whether the assignment had been made and if so, who the assignee was. Regulation 24(1)(ab) of the 1982 Regulations required the officer to notify someone who was entitled (among other things) to make an election to contribute to the Fund of the right to do so, and to send the prescribed form, Form 11. There is no dispute the 'responsible officer' form of notification did not happen in this case, but the Commission argues that the letter of 20 October achieves the same result so that nothing turns on it. Of course, it is inappropriate that the legislation was not complied with, but in the present context of determining whether a right has been lost, it is of no consequence.
There is much in the Commission's argument that by ticking the box electing to not remain a contributor, a person of the respondent's obvious intelligence, would reasonably think it was bringing about the suspension or deferment of contributions during a period of maternity leave. I would repeat that the last paragraph in the letter invites any queries to be directed to the office without hesitation. At this point, I should also mention the fact that the 'Memberships and Contributions' brochure discussed in the context of lost right claim 1 also deals with contributions during leave of absence. It clearly states that during leave without pay, a contributor may write to the Board seeking deferment of contributions for a period not exceeding two years on such conditions as the Board may allow, including payment of interest. It sets out the alternatives I referred to earlier.
There are also two further letters which I have not mentioned so far. There is one of 2 November 1989 addressed to the respondent's residence name and post office box. It is an acknowledgement of receipt of the election "requesting to withdraw from the Retirement Benefits Fund on appointment to a permanent part-time position". It concludes with asking the respondent to note that should her employment status change to permanent full-time, she would be required to rejoin. When asked about this, after a somewhat lengthy explanation about the misdeeds of the Postmaster at Devonport, with letters just disappearing through a very frustrating period, the respondent said she had no recollection of the letter, and her "heart would say" she did not receive it.
However, the same fate did not seem to befall a letter dated 24 January 1990 addressed in the same manner. That letter set out details of the eligible termination payment and required the completion of an enclosed Australian Taxation Office document. That was completed and returned. There is a further letter, dated 9 February 1990 and again addressed in the same way, which acknowledges receipt of the ATO form, and which refers to an enclosed cheque for the payout figure. That was banked. On receipt of neither of these letters did the respondent contact anyone at all to question the process, given what she said she thought she had achieved by filling in the Form 6 as she did.
Although I have made some criticisms of the obscurities in the Board's communications, I am not persuaded that the right or benefit has been lost otherwise than through the fault of the respondent, as I earlier explained that concept. I am not satisfied the respondent lacked the awareness of what her options were or of what the consequences were of completing the Form 6. On the whole of the evidence, I cannot be satisfied she did not intend those consequences. Although taken alone, the letter of 20 October was a little deficient in background explanation, it followed the phone call. The form was of itself rather obscure, the respondent had, or had the ability to quickly acquire, relevant information about the process.

[60]

This claim relates to a right, privilege or benefit, said to have been lost in April 1993. It arises out of what is described as a "government initiative" to ensure all permanent part-time employees were notified of the right to elect to contribute to the fund under section 6(1)c of the Act. This was done by way of a "mail-output". The respondent says she did not get any notice of this opportunity and would have sought to rejoin the Scheme at that time.
Before setting out my views on the merits, I will mention a preliminary matter. The material that gives rise to this claim comes from the affidavit of Elizabeth Sharp, General Counsel for the Commission, sworn on 19 May 2023. That is about 18 months after the originating application was filed. This case does not involve a general win/lose outcome. Although this claim is generically similar to other claims in terms of the respondent's actual or potential status within the Scheme, it does relate to a different point in time and for that reason has different consequences. This lost right was not claimed until written submissions were filed by the respondent on 8 December 2023, and accordingly it was not a claim the Commission inquired into under reg 101 of the 2017 Regulations; hence, not one in respect of which the subsequent statutory process provided for in reg 104 was followed. In turn, it follows that this Court is being asked to make a declaration affirming, varying or setting aside a determination which has not been made.
In Elmore at [4], Blow CJ said that the review by application for declaration under the then equivalent of reg 105, must be by way of a hearing de novo on the merits. There does not appear to have been any argument on the point, and quite properly the parties in this case have adopted Blow CJ's approach. I think it can be taken as correct.[12] But the procedure of an application for a declaration provided for in reg 105 carries with it the limitations that I have identified. A hearing de novo does not mean that a claimant is able to add separate and additional claims to the ones agitated before the Commission. Clearly, different evidence might emerge and different arguments put in respect of claims made to the Commission; the argument in lost right claim 2 is an example. I would take the view that this claim should not be entertained, but I will address the merits in any event.
For the following reasons the claim should fail. It is clear from the documents that the opportunity was to be afforded to all employees who had not previously been notified of the right to contribute to the Fund by way of the election to the provided for in s 6 of the 1982 Act. (Section 6(1)(c) dealt with permanent part-time employees.) This move seems to have originated in Treasury. In evidence are copies of notices to employees and of memoranda to paymasters/responsible officers and public sector unions. The material shows that the intention was to put a copy of the individual notice on the person's file. No such notice is to be found on that of the respondent. There is no evidence of how the recipients of the notice were identified. There is a mention of 5,500 temporary employees having been notified but no other information.
Assuming the notice was not sent to the respondent, the question remains whether she lost a right, privilege or benefit at that time. The answer must be in the negative. This was not a new opportunity created in April 1993. As a permanent part-time employee, she retained the right to elect to become a contributor. As far as the Board was concerned, the opportunity had been offered to her in October 1989. If there was a question of backdating membership, that depended on the Board being satisfied of a lost right, privilege or benefit within the meaning of section 87 of the 1982 Act, the equivalent of reg 101 one of the 2017 Regulations. It must follow that in or about April 1993, the respondent did not lose any right privilege or benefit.

[61]

This claim arises from a telephone enquiry made in August 1997 by the respondent to a person with the Board. The essence of the claim is that this was an opportunity for the respondent to then rejoin the Scheme pursued to the 1994 Regulations. The argument is that she lost the right to rejoin under either reg 21(7) or reg 23(6). There is a factual difficulty and a difficulty with the interpretation of reg 23(6). The claim should fail.
Dealing first with the regulations, the Commission accepts that in August 1997, as a permanent part-time employee before 1 July 1994, the respondent had a right to elect under reg 21(7) to become a contributor on and from the date of the election. However, it argues and I accept, that reg 23(6) did not apply to the respondent's circumstances. It provided that if a permanent employee was exempt from contributing under the 1994 Regulations or had been exempted under the 1982 Act or previous legislation, that employee was not obliged to contribute to the Fund unless they elected to contribute on from a date determined by the Board having regard to the employee's wishes.
The case for the respondent is based on a misconception that the respondent had been exempted from contributing under the 1982 Act. The misconception first appears in the respondent's affidavit where she specifically refers to the October 1989 determination as an "exemption ". That is not the case. For instance, there were earlier provisions allowing exemptions for married women, people over the age of 40 and for those who could prove to the Board they had made adequate provision for themselves and family; under the 1982 Act, where a person satisfied the Board that further contributions would cause the superannuation provision to be in excess of that taken to be reasonable under a law of the Commonwealth.
The determination in October 1989 that the respondent was a permanent part-time employee did not amount to an exemption. It led to the situation in which the respondent elected not to be a contributor. It did not grant an immunity or freedom from any liability to which she would otherwise have been subject: Salemi v McKellar (No 2) (1970) 137CLR 396 at 414.
The factual difficulty is created by the respondent's evidence. A Board telephone enquiry file note records what appears to be an enquiry from the respondent on 6 August 1997 about estimates of benefits at certain ages and on a certain event. (There is a letter from the Board to the respondent of 22 August 1997 in which this information is provided.) In her affidavit, the respondent says that in this conversation she was not told she could then apply to rejoin the scheme. She was not asked any questions about this in her oral evidence. In submissions, the statement in the affidavit was wrongly converted to an assertion that the respondent was told she could not apply to rejoin.
The claim is therefore based on the proposition that when responding to any enquiry, no matter how specific, the Board through its employees or agents, was under an obligation to carry out a wholesale appraisal of the person's file and to offer unsolicited, gratuitous advice about what options may or may not be available in relation to all aspects of Fund membership. That proposition cannot be accepted. The right to rejoin under reg 21(7) was not lost and no other right, privilege or benefit was lost.

At a glance

Court

Decision date

Before

Source

Judgment (75 paragraphs)

Superannuation Commission v Sandman [2025] TASSC 48 (30 September 2025)

Parties

Legislation Cited (11)

Cases Cited (6)