Fox v Commissioner for Superannuation [1999] FCA 372

FEDERAL COURT OF AUSTRALIA

Fox v Commissioner for Superannuation [1999] FCA 372 JUDGMENTS – Failure of both parties to draw the Court's attention to a critical statutory provision – Reopening of appeal – Whether the Full Federal Court should set aside its earlier judgment under Federal Court Rules, O 35 r 7, the slip rule SUPERANNUATION – Whether applicant's entitlement to a pension under s 60N Superannuation Act 1922 (Cth) should be calculated by reference to contributions paid or contributions liable to be paid – Combined operation of Superannuation Act 1922 (Cth) ss 48B & 60N – Meaning of "salary" – Whether a dependant's allowance falls within the concept of "salary" Administrative Appeals Tribunal Act 1975, (Cth) s 44(1) Superannuation Act 1922 (Cth), ss 4, 12, 13, 16, 22, 48B & Part IVA (ss 60A-60T) Superannuation Act 1942 (Cth), ss 6, 18 Acts Interpretation Act 1901 (Cth), s 15AA(1) Defence Act 1903 (Cth), ss 30, 31, 33, 45, 49, 117, 124 Defence Act (No 3) 1939 (Cth) Superannuation Act 1924 (Cth), s 16 Australian Military Regulations 1927, reg 109 Military Financial Regulations 1935, regs 17-43A War Financial (Military Forces) Regulations 1942, regs 4, 7, 8, 9, 10, 34, 36 Federal Court Rules,O 35, r 7 Fox v Commissioner of Superannuation (1997) 78 FCR 151, considered. University of Newcastle v Chopra (1989) 63 ALJR 397, cited. CIC Insurance Ltd v Bankstown Football Club Ltd (1995-7) 187 CLR 384, followed. Waugh v Kippen (1986) 160 CLR 156, cited. Newcastle City Council v GIO General Ltd (1997) 191 CLR 85, cited. Saraswati v The Queen (1991) 172 CLR 1, cited. Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297, cited. MBF v Pullinger (1990) 95 ALR 463, cited. Hilton v Commissioner of Taxation (1992) 38 FCR 170, cited. Chun Wang v Minister for Immigration & Multicultural Affairs, unreported, 13 February 1997, Merkel J, cited. Autodesk Inc v Dyason [No 2] (1993) 175 CLR 300, cited. Commissioner of Superannuation v Carpenter (1983) 48 ALR 230, cited. L Shaddock & Associates Pty Ltd v Council of the City of Parramatta [No 2] (1983) 151 CLR 590, cited. Wykes v Samilk Pty Ltd [No 2] NSWCA, unreported, 18 August 1998, cited.