Denial of Commonwealth Superannuation Update: part 2

Richard Faulks

30 Nov 2020


  • Commonwealth Superannuation

Were you denied Commonwealth superannuation?  Snedden Hall & Gallop remains the only law firm in Australia to successfully litigate compensation claims against the Commonwealth. This is the second and final part series updating former employees of the Commonwealth government and Commonwealth statutory authorities who were denied membership of the Commonwealth superannuation schemes during the period from the 1960s to 1990s.This 2 part blog series is aimed at providing an update about some of the current issues.

Here, in Part 2:

  • Time Limits
  • “Act of Grace” Payments
  • What you need to do

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

Time Limits

One of the major hurdles faced by all potential claimants is the time limit applying to claims of this nature and we will provide a further update about that below.

Every civil claim in the ACT, and in other jurisdictions around Australia, must be commenced in the court within a specified time, called “the limitation period”. For claims for damages arising from misrepresentation, the time limit is six years from the date when the right to bring a claim or cause of action accrued. From the outset, the Commonwealth, and other respondents to these claims, had argued that as the events occurred many years ago, such claims could not now be successful because of the time limit. In the High Court decision in Cornwell, the High Court found that the time limit did not start to run until a loss was suffered, and such a loss was not suffered until there was a trigger of an entitlement under the relevant superannuation legislation.

Since that time, there has been further argument about when that loss is suffered and in a Full ACT Supreme Court decision in 2015, it was held that in circumstances where a former employee left government employment and took a redundancy, the loss was suffered at that point, even if the employee either preserved their superannuation entitlements or says that they would have preserved it. The effect of that decision is that in many cases, a potential claimant will be denied the right to bring a claim if they left government employment more than six years before commencing a court proceeding, particularly if they did so by taking a redundancy. This situation arises even if such an employee actually preserved their super within the Commonwealth super scheme and has not retired or accessed such an entitlement.

These matters were considered further in the Federal Court appeals but no further consideration was provided.

What this does show, however, is the importance of seeking advice as soon as possible about any potential entitlements because of the time limit that might apply.

“Act of Grace” Payments

The Commonwealth government has legislation which provides that the Commonwealth may make what are called “act of grace” payments to those who are affected by Commonwealth conduct, but may not be able to make any formal claim for damages, perhaps because of a time limit issue. Such payments are entirely discretionary and involve the Commonwealth forming a view that a particular person has a meritorious claim, but cannot bring the claim because of a legal impediment, such as the time limit. Initially, the Commonwealth refused all “act of grace” applications relating to those denied superannuation eligibility, but in more recent months the Commonwealth has started to properly assess such applications and has been making some modest “act of grace” payments to former employees denied superannuation rights.

Therefore, even for those of you who may be outside the six-year time limit, we are able to assist with information about a potential “act of grace” payment and, if required, assist with that application.

What you need to do

We encourage you to share this update with your work colleagues who may be affected by these types of circumstances. There are many government employees and former government employees who will be significantly disadvantaged upon retirement as a result of being told that they could not join what were then very generous and positive superannuation schemes for government employees.

Snedden Hall & Gallop will consider claims on a no-win, no-fee basis and advise of potential entitlements. Here is a form which will help us to determine if you have a claim.

How can SHG Lawyers 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. 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.