Phillips v Commissioner for Superannuation [2004] FCA 829

FEDERAL COURT OF AUSTRALIA

Phillips v Commissioner for Superannuation [2004] FCA 829 GAIL ROSLYNNE PHILLIPS v COMMISSIONER FOR SUPERANNUATION Q 65 OF 2004 DOWSETT J 1 JUNE 2004 BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 65 OF 2004

BETWEEN: GAIL ROSLYNNE PHILLIPS

APPLICANT

AND: COMMISSIONER FOR SUPERANNUATION

RESPONDENT

JUDGE: DOWSETT J

DATE OF ORDER: 1 JUNE 2004

WHERE MADE: BRISBANE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY Q 65 OF 2004

BETWEEN: GAIL ROSLYNNE PHILLIPS

APPLICANT

AND: COMMISSIONER FOR SUPERANNUATION

RESPONDENT

JUDGE: DOWSETT J

DATE: 1 JUNE 2004

PLACE: BRISBANE

REASONS FOR JUDGMENT 1 This is an application for an extension of time in which to appeal from a decision of the Administrative Appeals Tribunal brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth). Such appeals are limited to questions of law. 2 The applicant (Ms Phillips) was formerly employed in various parts of the Commonwealth public service and became entitled to superannuation benefits, no doubt partly attributable to her own contributions and partly to contributions by her various employers. On 1 March 1988, Ms Phillips was retired from the public service upon the ground of ill-health and as a result, became entitled to certain benefits pursuant to, in particular, s 66(1) of the Superannuation Act 1976 (Cth) (the "Superannuation Act"). There is some dispute as to the effective date of her resignation. Ms Phillips asserts that the effective date may have been 14 March 1988. It does not matter for present purposes. Ms Phillips was, for various reasons, dissatisfied with the circumstances surrounding her retirement and sought redress, apparently on the advice of the Merit Protection Review Agency. This appears to have complicated the processing of her superannuation entitlements. As a result she apparently experienced financial difficulties and drew this to the attention of the relevant superannuation authority. On 4 November 1988 the authority determined that she should be paid an interim benefit, purportedly acting pursuant to s 158 of the Act. These payments continued until May 1989. It appears to be common ground that such a decision could only be made if an application had been made by Ms Phillips. It is also common ground that Ms Phillips made no such application. She has regularly indicated her dissatisfaction with the decision to pay the benefit. 3 The reason for Ms Phillips' dissatisfaction with the decision is that in 1990, her pension entitlement was converted to a lump sum entitlement, the amount of which was reduced by the amount already paid to her as a pension. However, whilst she was receiving the pension, she was not entitled to sickness benefits. Had she not been receiving the pension, she would have received sickness benefits, and her lump sum entitlement would not have been reduced. Thus she feels that she has been deprived of part of the ultimate benefit to which she was entitled. 4 The decision was, at her instigation, reviewed by a departmental officer, Mr Major, who affirmed it. He identified the fact that, pursuant to s 66(1), Ms Phillips had, in effect, become entitled to a benefit upon the termination of her employment, subject only to the possibility that she might make an election pursuant to either s 68 or 69. It is not necessary to consider those sections as no such election was made within the prescribed time. Ms Phillips asserts that this was because of advice she had received from the Merit Protection Review Authority. That may be so and, if so, the advice may have been misconceived. Ms Phillips may have a claim for ex gratia compensation for maladministration or some other claim against that Authority, but that is not a matter with which I am presently concerned. 5 Mr Major concluded that as at 1 March 1988, or on the applicant's view of things, 14 March 1988, or perhaps three months after whichever date is appropriate, the time allowed for an election under ss 68 and 69, Ms Phillips became entitled to a pension pursuant to s 66(1). Mr Major concluded that notwithstanding any misconception as to interim payments, Ms Phillips was, as at November 1987, entitled to a pension pursuant to s 66(1), and that therefore the decision to pay that pension during the period from November 1988 to May 1989 was correct. 6 Ms Phillips was dissatisfied with Mr Major's decision and sought review of the original decision in the Administrative Appeals Tribunal. For reasons that need not be considered, that matter was not resolved until February of this year. The Tribunal affirmed the decision, more or less upon the grounds identified by Mr Major. Ms Phillips seeks to appeal from the Tribunal's decision, her ground being the same - namely that she did not apply for the interim benefit, and that her receipt of it has to some extent reduced the amount of the lump sum payment which she eventually received. I cannot see any deficiency in the logic of the argument advanced by Mr Major and adopted by the AAT. After her retirement, or at least after the time for any election under s 67 or s 68 had expired, the relevant authority was obliged to pay a pension pursuant to s 66(1). That it may have done so under the wrong provision of the Act does not lead to any relief concerning that decision. It is unfortunate that in the event, her total benefit has not been maximized, but that seems to be the consequence of the way in which the system operates. 7 Ms Phillips did not appeal within the prescribed time. When she applied for an extension of time, the appeal period had expired some weeks previously. Given the nature of the matter, I would have been inclined to extend time, had there been any arguable ground of appeal. There is none. In those circumstances, this application must be dismissed. The applicant is to pay the respondent's costs of these proceedings. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.