Cornwell Superannuation Case
Update 27 October 2008
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 [].
1. Background information about the Cornwell superannuation case
2. Other litigation
3. Statute of limitations and legal processes
4. How to register a claim
5. Information for potential claimants with similar claims
6. Progress on claims received by Finance to date
7. Frequently asked questions
Background information about the Cornwell superannuation case
Mr John Cornwell was employed by the Department of the Interior and the ACT Government between 1962 and 1994. In 1965, his manager advised him that he was ineligible to join the Commonwealth Superannuation Fund.
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. Based on this decision, the High Court found that, as Mr Cornwell commenced his legal action in 1999, five years after he retired, he was within the time limitations set out in the statute of limitations legislation.
Mr Cornwell and the Commonwealth have reached an agreement and his claim for compensation has been settled.
Other litigation
There are currently 20 similar cases listed with the ACT Supreme Court.
On 16 March 2006, Mr John Smith filed proceedings in the ACT Supreme Court against the Commonwealth for misstatement in relation to his superannuation. He undertook this action to preserve his rights under the Statue of Limitations in the event that the date of his retirement was the date used to determine the start of Limitations. Due to his ill health, Mr Smith's hearing was expedited to be heard on 29 May 2007.
On 23 May 2007, the Chief Justice of the ACT Supreme Court judged in favour of the Commonwealth against Mr Smith and ordered that he 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 by two claimants of the Commonwealth’s Calderbank offer. The Consent Judgement was with no order to costs.
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.
Statute of limitations and legal processes
A claim similar to Mr Cornwell's must generally be made within six years of a person becoming eligible and receiving superannuation payments under an Australian Government superannuation scheme. If a claim is not made within the time limitation, the claim may be statute barred.
It should be noted that a claim being submitted to Finance does not prevent it from becoming statute barred. To prevent your claim from becoming statute barred, you must register your claim with a court.
If you have any queries about your claim, potential claim or about any statutory time limits, you should seek independent legal advice.
The discretionary assistance mechanisms may also be relevant to your individual circumstances. If you apply for consideration under Section 33 of the Financial Management and Accountability Act 1997, you must provide evidence to support your claim of misstatement against the Commonwealth.
How to register a claim
Claims can be registered with Finance by completing a questionnaire and sending it to:
Branch Manager
Comcover
Department of Finance and Deregulation
John Gorton Building
King Edward Terrace
PARKES ACT 2600
or to: superclaims@finance.gov.au
- Questionnaire PDF version [
48KB] - Questionnaire RTF version [
180KB]
However, if you have previously registered a claim with Finance, you do not need to provide any additional information. Finance will contact potential claimants if further details are required.
General enquiries regarding Australian Government superannuation schemes should be directed to ComSuper [] on 1300 000 177.
Information for potential claimants with similar claims
There may be other similar claims from former or current federal public sector staff who consider that they were given incorrect advice that they were not eligible to join an Australian Government superannuation scheme.
Before you register your claim with Finance, you should consider whether you meet the following criteria:
If you are still working for the Australian Government
You will not meet the necessary criteria, which requires that you have retired and are in receipt of a superannuation payment. However, you may still submit a claim which will be registered and considered at the time of your retirement.
Before you register, you should consider whether you meet the following criteria:
Criteria set out by the High Court of Australia:
- You were eligible to elect 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 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.
Progress on claims received by Finance to date
Claims that have been registered with Finance are currently being assessed. At the moment, people are being requested to provide further information or are being advised that they do not have a valid claim against the Commonwealth for negligent misstatement.
If it is considered that you may have a claim against the Commonwealth, you will be contacted. To determine whether you have an actual claim, the following information will be sought:
- 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
- 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 must, at the very least, meet the following criteria:
- Were you eligible to elect to join the relevant superannuation scheme in accordance with the superannuation rules at the time?
- Did you receive wrong advice from a person in authority that you could not join the relevant superannuation scheme?
- Would you have joined the superannuation scheme except for that wrong advice?
- Can you prove that you suffered a financial loss as a direct result of this wrong advice?
- Can you apply within 6 years of the date you retire or from another statutory trigger which allows you access to your superannuation benefits?
If you meet these criteria you may have a claim and should register with Finance.
In general terms the Cornwell case involved a temporary employee who was given wrong information. He was incorrectly told he was unable to join an Australian Government superannuation scheme even though he was eligible to contribute. As a result of this wrong information, he did not join until a later date and suffered a financial loss when he retired.
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 Australian Government superannuation scheme and I am still working. Can I lodge a claim?
Yes. You can lodge a claim with Finance 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 the date they retired, and were receiving superannuation payments, it is possible to lodge a claim now. If you have a future claim, Finance will provide advice on how your claim may be progressed.
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 within six years of receiving superannuation payments. 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), may be statute barred and may not be considered. If you have questions about the statute of limitations, you should seek independent legal advice.
In the event that you are unsure about the implications of your particular circumstances, you may lodge a claim with Finance.
However, lodging a claim with Finance does not prevent it from becoming statute barred.
5. I started work for the Australian Government as a temporary employee and was told that I had to wait for a specified amount of time before contributing to an Australian Government superannuation scheme. Do I have a claim?
Not necessarily. Until the introduction of the Public Sector Superannuation Accumulation Plan (PSSap) on 1 July 2005, temporary employees needed to satisfy certain conditions to be eligible to contribute to an Australian Government superannuation scheme. These included working for a specified time before being eligible for entry into the scheme. If you commenced employment before 1 July 1990, your employer also had to certify that you would continue to be employed for another specified period in the future.
These conditions, which are summarised below, have changed over the years as superannuation schemes have been amended, and may vary in certain circumstances.
The Superannuation Act 1922 (the 1922 Act) originally provided superannuation for permanent public servants only.
Temporary employees were first allowed 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.
Scheme entry requirements were amended in 1945 to enable temporary employees to join if they had been employed for five years or more and were certified as having ten years future employment.
Amendments in 1951 enabled temporary employees to join the scheme if they had been working continuously for no less than three years and were certified as having seven years future employment.
The Commonwealth Superannuation Scheme (CSS) established by the Superannuation Act 1976 (the 1976 Act) replaced the 1922 Act scheme from 1 July 1976.
Temporary employees were permitted to join the CSS if they:
- had been employed for 12 months and were certified as having continuing temporary employment for a further three years; or
- were considered likely to become CSS members within 3 years by another means (for example being appointed to the Public Service on a permanent basis).
The Public Sector Superannuation Scheme (PSS) established under the Superannuation Act 1990 replaced the CSS as the main Australian Government superannuation scheme from 1 July 1990.
A temporary employee could become a PSS member 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 year period prior to their current contract; or
- had a transfer value from another employer that they intended to pay into the PSS Fund.
Note: The conditions described above vary in certain circumstances. For example, conditions relating to access for temporary employees with transfer values relating to previous employment differ slightly from those described above. In some circumstances there were additional requirements. For example, the 1922 Act required a temporary employee to pass a medical examination before joining the scheme.
6. I was told that I was not allowed to include prior service when applying for an Australian Government superannuation scheme. Is the Cornwell decision appropriate to my case?
Possibly. For example, if an employer incorrectly advised a temporary employee that prior service did not count towards eligibility for Australian Government superannuation, the Cornwell decision may be relevant.
For claims where such circumstances do not apply and general Australian Government superannuation queries, please contact ComSuper [] on 1300 000 177.
Contact for information on this page: superclaims@finance.gov.au