Information Regarding Cornwell-Type Claims
- Background information about the Cornwell superannuation case
- How Comcover considers Cornwell- type claims
- Special Circumstances and Discretionary Compensation
- Other litigation and settlements
- Statute of limitations and legal processes
- Information for potential claimants with similar claims
- How to register a claim
- Progress on claims received by Finance to date
- Frequently asked questions
- General Superannuation Enquiries
- Senate Inquiry into Superannuation Claims of former and current Commonwealth Public Service Employees
Background information about the Cornwell superannuation case
The High Court found against the Commonwealth in the Cornwell superannuation case in April 2007. For general information about the decision, please refer to the High Court's media release [
] . The full decision is available at Commonwealth of Australia vs Cornwell [2007] HCA 16 [].
Mr John Cornwell was employed by the Department of the Interior and the ACT Government between 1962 and 1994. In 1965, when Mr Cornwell was eligible to apply to join Commonwealth Superannuation, his manager advised him that he was ineligible to join Commonwealth Superannuation. This information was incorrect and Mr Cornwell successfully argued in the High Court that he should have been allowed to join the superannuation scheme in 1965.
Importantly, the High Court found that Mr Cornwell’s cause of action against the Commonwealth did not accrue until he retired in 1994. Consequently, the legal action he instituted in 1999 was found to be within the 6 year period of limitation set out in the statute of limitations legislation.
Based on supporting documented evidence, Mr Cornwell and the Commonwealth reached an agreement and his claim for compensation was settled.
How Comcover considers Cornwell- type claims
Comcover is the Australian Government's general insurance fund. It is bound to consider claims in accordance with the Legal Services Directions (issued by the Attorney-General’s Department). In order to settle any claim, it must be shown that there is a meaningful prospect of legal liability. Typically for Cornwell-type claims, this means that certain criteria (as identified in the High Court decision and in the applicable Superannuation Acts) must be met.
The criteria that the claimant must demonstrate is that they:
- were eligible to apply to join the relevant Commonwealth superannuation fund in accordance with the superannuation rules applicable at the time of the alleged negligent misstatement;
- received incorrect advice (a negligent misstatement) from a person in authority that the claimant could not join the relevant superannuation scheme;
- relied on that advice and would have applied to join and would have been accepted into the superannuation scheme except for that wrong advice;
- are submitting a claim within 6 years of the date they retired, or from another statutory trigger which allows them access to their superannuation benefits; and
- can demonstrate that they suffered a quantifiable financial loss.
As at February 2010 around 670 Cornwell-type claims have been received by Comcover, of these, around 350 have been closed on that basis that there was no evidence of negligent misstatement or because the claim was statue barred under the Limitations Act. Approximately 15 claims have been settled where there was documented and/or corroborating evidence which has led Comcover to conclude that there was a meaningful prospect of legal liability being established. The remainder of claims are still under consideration and many include complex issues of law.
Where Comcover has concluded that legal liability for negligent misstatement is unlikely to be established, but there may have been administrative errors in the treatment of the claimant’s entitlements, they are referred to ComSuper [] for consideration.
Special Circumstances and Discretionary Compensation
Under subsection 33(1) of the Financial Management and Accountability Act 1997 (FMA Act), the Minister for Finance and Deregulation has the power to approve an act of grace payment if the Minister considers it appropriate to do so in special circumstances. However, you should carefully note that the act of grace power is not meant to be used as an alternative to other avenues of financial redress but rather as a remedy that may only be applied in special cases to ensure consistency and equity in the impact of Government activities. The act of grace power is a mechanism of last resort and each case is assessed on its own merits.
If you apply for consideration under one of the discretionary assistance mechanisms you will still be required to provide documented and/or corroborating evidence to support your claim.
Other litigation and settlements
There are approximately 20 cases currently listed with the Courts.
In accordance with the Legal Services Directions, Comcover is required to apply the law as it stands from time to time. At present, the Commonwealth owes no statutory or general duty to advise in relation to a temporary employee’s eligibility to contribute to Commonwealth superannuation in the absence of a request for advice from the employee. However, there is a series of cases in the ACT Supreme Court which is considering these aspects and judgements are awaited. This webpage will be updated once judgements are delivered.
On 16 March 2006, a claimant filed proceedings in the Supreme Court of the Australian Capital Territory against the Commonwealth for negligent misstatement in relation to his superannuation. The Court judged in favour of the Commonwealth and ordered that the claimant pay the Commonwealth's costs.
On 30 July 2008, the Supreme Court of the Australian Capital Territory signed a Consent Judgement, in favour of the Commonwealth, following the acceptance of the Commonwealth’s Calderbank offer. The Consent Judgement was with no order as to costs (i.e. no compensation was paid by the Commonwealth).
On 1 September 2008, the Supreme Court of the Australian Capital Territory signed a Consent Judgement following the Commonwealth’s agreement to accept a claimant’s Calderbank offer. The Commonwealth was ordered to pay costs and did so.
Comcover has settled two claims that have not been litigated. It was found in these claims that there was a meaningful prospect of legal liability being established, i.e. there was incorrect advice given which led to the claimant suffering a financial detriment. These claims were supported by documentary evidence.
Statute of limitations and legal processes
A claim similar to Mr Cornwell's must generally be lodged with a court within six years (note that in the Northern Territory the Statute of Limitations is 3 years) of a person becoming eligible to receive their superannuation payments under an Australian Government superannuation scheme. If a claim is not made within the time limitation, the claim may be statute barred.
However, where a claim is lodged with Comcover prior to the expiration of the limitation period, Comcover may, in appropriate circumstances, seek to have the period of limitation suspended while the claim is considered.
If you have any queries about whether you have a legal claim, you should seek independent legal advice.
Information for potential claimants
If you are still working and/or you have not yet become eligible to access your superannuation benefits, your legal claim will not have eventuated yet. However, you may still submit a claim which will be registered and considered when you further advise Comcover that you have retired, or are in receipt of your superannuation benefits.
Before you register, you should also consider whether you meet the following criteria:
Criteria set out by the High Court of Australia:
- You were eligible to apply to join the relevant superannuation scheme in accordance with the superannuation rules relevant at the time.
- You received wrong advice from a person in authority, on whom it was reasonable to rely, that you could not join the relevant superannuation scheme.
- You would have joined the superannuation scheme except for that wrong advice.
- You are submitting a claim within 6 years of the date you retire, or from another statutory trigger which allows you access to your superannuation benefits.
Further, a temporary employee’s eligibility was defined by three pieces of Commonwealth superannuation legislation:
- Superannuation Act 1922
- Superannuation Act 1976
- Superannuation Act 1990
A. The Superannuation Act 1922 was originally only accessible to permanent public servants. Temporary employees became eligible to apply to join the scheme in 1942 if they had been employed for no less than five years and were certified as having indefinite future employment. All employees entering the 1922 Act scheme were required to undertake a medical examination. If they passed the medical examination, the employee was permitted entry into the main scheme, however if they failed the medical examination the employee could only contribute to the Provident Account scheme.
Scheme entry requirements were amended in 1945 to enable temporary employees to join if they had been continuously employed for five years or more, were certified as having ten years future employment and successfully completed a medical examination.
Amendments in 1951 enabled temporary employees to join the scheme if they had been working continuously for no less than three years, were certified as having seven years future employment as well as successfully completing a medical examination.
B. The Commonwealth Superannuation Scheme (CSS) established by the Superannuation Act 1976 replaced the 1922 Act scheme on 1 July 1976. Employees joining the Australian Public Service (APS) after that date could only join the CSS.
Under the CSS temporary employees were eligible to elect to join the scheme in certain circumstances, including:
- where they had been employed for 1 year and were certified as being likely to continue as a temporary employee for at least a further three years; or
- where they were considered likely to become CSS members within that 3 year period by another means (for example being appointed to the Public Service on a permanent basis), and successfully completed a medical examination; or
- where they were a temporary employee of an approved authority and requested that the Commissioner direct that they be treated as an eligible employee, and the commissioner is satisfied that they would be employed in a permanent capacity within 12 months; or
- where they were employed under a contract for a term of at least 1 year, and requested the Commissioner to direct that they be treated as an eligible employee, and the Commissioner directs they are an eligible employee.
C. The Public Sector Superannuation Scheme (PSS) established under the Superannuation Act 1990 replaced the CSS on 1 July 1990. Employees joining the APS after that date could only join the PSS.
A temporary employee could elect to join the PSS if they were employed under a contract for a period of 3 months or more, or had accumulated 3 months employment over the preceding two years prior to their current contract, or had a transfer value from another employer that they intended to pay into the PSS, and completed a medical examination.
Note: The criteria described above are meant to provide general guidance only. Please refer to the relevant Superannuation Acts at ComLaw [] for further information.
How to register a claim
Claims can be registered with Comcover by completing a questionnaire and sending it to:
or to the:
Branch Manager
Comcover
Department of Finance and Deregulation
John Gorton Building
King Edward Terrace
PARKES ACT 2600
- Questionnaire PDF version [
122KB] - Questionnaire RTF version [
7MB]
If you have previously registered a claim with Comcover, we will contact you if further details are required.
Comcover contact numbers: Phone: (02) 6215 2222; Fax: (02) 6267 3101
Progress on claims received by Comcover to date
Claims that have been registered with Comcover are being assessed. Claimants may be requested to provide further information or, where appropriate, advised that they do not have a valid Cornwell-type claim.
Additional information that may be sought from you may include:
- Permission to obtain your personnel/employment records
- Your personnel/employment records
- Your superannuation records
- General administrative records from your employer
- Written statements from the person/s you claim gave you the incorrect advice and/or corroborating evidence
- Actuarial evidence
Frequently asked questions
1. How do I know if I have a Cornwell-type claim?
To determine if you have a Cornwell-type claim you should consider whether you meet the criteria specified under the above heading: Information for potential claimants
2. What if I have a question or problem with my superannuation and it isn't a Cornwell- type claim?
If you have a general question regarding your superannuation, you should contact ComSuper [ ] on 1300 000 177 or the Department/Agency where you were last employed.
3. I think I was given the wrong advice about my eligibility to join an Commonwealth superannuation scheme and I am still working. Can I lodge a claim?
Yes. You can lodge a claim with Comcover even if you have not yet retired.
While the High Court determined that an individual did not have a financial loss in relation to their superannuation until they became eligible to access their superannuation benefits, it is possible to lodge a claim now. Your claim will be considered once you have advised Comcover that you have retired.
4. I think I was given the wrong advice about joining an Australian Government superannuation scheme and retired 8 years ago and have been receiving superannuation payments since then. How does the Statute of Limitations impact on my claim?
The Statute of Limitations means that you must generally lodge your claim with a court within six years of being eligible to receive your superannuation benefits. The High Court found in the Cornwell case that a loss did not occur until the date of his retirement. Therefore, claims made more than six years after retirement (note that in the Northern Territory the Statute of Limitations is 3 years), will be statute barred and will not be able to be considered by Comcover.
If you have questions about the Statute of Limitations, you should seek independent legal advice.
However, where a claim is lodged with Comcover prior to the expiration of the limitation period, Comcover may, in appropriate circumstances, seek to have the period of limitation suspended while the claim is considered.
5. I started work for the Commonwealth as a temporary employee and was told that I had to wait for a specified amount of time before contributing to an Commonwealth superannuation scheme. Do I have a claim?
To determine if you have a Cornwell-type claim you should consider whether you meet the criteria specified under the above heading: Information for potential claimants
General Superannuation Enquiries
Further enquiries regarding Commonwealth superannuation schemes should be directed to ComSuper [] on 1300 000 177.
Senate Inquiry into Superannuation Claims of former and current Commonwealth Public Service Employees
During 2011, the Senate Standing Committee on Finance and Public Administration held an Inquiry into Superannuation claims of former and current Commonwealth Public Service Employees.
For information about the terms of reference of the Inquiry, including submissions by the Department of Finance and Deregulation and other parties involved in Cornwell-type claims please refer to Senate Standing Committees on Finance and Public Administration’s website [] .
The Government response to the Senate inquiry into Superannuation Claims of former and current Commonwealth Public Service Employees has been tabled in the Senate. Please find attached the Government response addressing the majority and minority recommendations of the Senate Standing Committee on Finance and Public Administration’s report on this matter.
Contact for information on this page: superclaims@finance.gov.au