Denial of Commonwealth Superannuation Update: part 1

Richard Faulks

16 Nov 2020


  • Commonwealth Superannuation

Were you misled about your eligibility to join a Commonwealth superannuation scheme? The Superannuation Claims team at Snedden Hall & Gallop has been assisting former and current employees of the Commonwealth government and Commonwealth statutory authorities who were denied membership of the Commonwealth superannuation schemes during the 1960s, 70s, 80s and 90s. This 2 part blog series is aimed at providing an update about some of the current issues.

The issues we cover Here in Part 1:

  • Progress of Claims and Court Decisions
  • Former employees of Trans Australia Airlines

We encourage you to pass on these blog posts to any of your colleagues who may have an interest in this matter.

Progress of Claims and Court Decisions

The law in relation to misrepresentations made by Commonwealth representatives or senior officers in government statutory authorities, has been well settled since the High Court decision in Cornwell. There appears to be little doubt that in circumstances where a serious enquiry was made about an employee’s eligibility for membership of the superannuation schemes, and incorrect or misleading information was given to that employee and a loss resulted, then this can form the basis for a Cornwell–type claim in negligence. The position is not so clear in relation to whether or not the government or its statutory authorities had a duty of care to provide information of a positive nature about eligibility where no enquiry was made. In other words, where the government has failed to provide information about eligibility, the current state of the law would suggest that no liability is likely to result.

Since the Cornwell decision, there has been success in resolving Cornwell–type claims directly with the Commonwealth and with some of its statutory authorities, including ACTEW Corporation (now known as Icon Water) which inherited some liabilities from the previous Commonwealth statutory authority known as the ACT Electricity Authority, and the ABC.

In addition to that, we successfully conducted cases in the ACT Supreme Court for former employees of the Commonwealth and in a decision generally known as Meredith v Commonwealth, we were able to further confirm the principles applying to circumstances where misrepresentations were made about eligibility for Commonwealth superannuation, as well as clarifying some of the relevant factors taken into account in calculating the loss suffered. Those principles have been followed in subsequent discussions involving other claims.

There have been no decided cases involving the former employees of the ACT Electricity Authority, but there has been a continued pattern of ongoing alternative dispute resolution involving such matters, though the division of liability between ACTEW Corporation Ltd (now Icon Water) and the Commonwealth remains unclear and is yet to be the subject of any court decision.

Former employees of Trans Australia Airlines (TAA)

We have also some progressed claims on behalf of former employees of TAA who were denied membership of government superannuation schemes. We conducted some claims in the Federal Court in 2015 and, although the three claims which went to trial were lost because of the findings of fact against the particular claimants, and a subsequent appeal was unsuccessful. It is our view that what was clarified as a result of the judgments in those matters, was a pattern of behaviour on the part of TAA up until 1980 (when Commonwealth superannuation was discontinued for such employees). This would suggest that many employees were misled about their entitlements and kept out of Commonwealth superannuation when they should not have been. We are continuing to investigate these potential claims.

If you are a former employee of TAA, you may have a claim. You can find a form designed for former employees of TAA which will capture the relevant information and enable that advice to be given in a timely fashion, here.

How can Snedden Hall & Gallop help you?

Snedden Hall & Gallop has helped many clients obtain compensation for periods of lost membership of Commonwealth superannuation. We remain the only law firm in Australia to successfully litigate claims of this type against the Commonwealth.

You can find out more about the Cornwell case. Please contact the Superannuation team at Snedden Hall & Gallop today by email or call us on (02) 6285 8000.

You can find out more about our Superannuation claims team.