Criminale v State Authorities Superannuation Board [1989] HCA 48

High Court of Australia Brennan, Deane, Dawson, Toohey and Gaudron J Criminale v State Authorities Superannuation Board [1989] HCA 48

Brennan, Deane, Dawson, Toohey and Gaudron JJ

THE COURT. These proceedings are another chapter in the protracted history of the superannuation entitlements of persons employed at the United Dental Hospital of Sydney, an institution constituted under the Dental Hospitals Union Act 1904 NSW. Each of the appellants and one Dr Walker were employed by the board of control of that institution. They commenced their respective employment by the board at some time between 1955 and 1963. On 6 April 1979, by force of s 33FF(1) of the Public Hospitals Act 1929 NSW which came into effect on that day, the appellants and Dr Walker were deemed to have been appointed as employees of United Dental Hospital of Sydney, a body corporate. It is convenient to refer to the previous employer as "the board" and to the body corporate as "the hospital".

On 10 October 1935, pursuant to s 92 of the Superannuation Act 1916 NSW as it then stood, the provisions of the Superannuation Act were extended to the board by a proclamation which inserted the board's name into sched III of that Act and which notified 21 October 1935 as the date from which employees of the board should contribute to the State Superannuation Fund. Pursuant to the proclamation, the board became an "employer" for the purposes of the Superannuation Act and, from 21 October 1935, any person who answered the statutory description of an "employee" of the board was entitled and bound to make contributions to the State Superannuation Fund (the State Fund) established by that Act and was entitled to the benefits of a contributor under that Act. At all material times the term "employee" has been defined by s 3(1) of the Superannuation Act to mean (omitting irrelevant parts) a