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  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. 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 and accessed his superannuation benefits. 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 the Commonwealth 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 2017 (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.
Commonwealth Superannuation Eligibility
A temporary employee's eligibility was defined by three pieces of Commonwealth superannuation legislation:
- Superannuation Act 1922
- Superannuation Act 1976
- Superannuation Act 1990
- The Superannuation Act 1922 was originally only accessible to permanent public servants. 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.
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.
From 1951 onwards, temporary employees were able to be deemed eligible to apply to join the Commonwealth superannuation fund if they:
- were required by the terms of their employment to give the whole of their time to the duties of their employment (i.e. were working full-time, not part-time hours); and
- had been employed for a continuous period of at least 3 years; and
- had been certified as being likely to continue in that employment for at least a further 7 years.
- 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. The CSS closed to new members from 1 July 1990.
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.
Part-time employees are generally excluded from the definition of 'temporary employee' under section 3 of the 1976 Act.
- 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.
Joining the PSS as a temporary employee was not compulsory. 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.
How to register a claim
Claims can be registered with the Department of Finance (Finance) by completing a questionnaire and application forms for an act of grace payment.
Information and application forms regarding act of grace payments are available here.
The completed questionnaire and application forms can be sent to:
Discretionary Payments Section
Department of Finance
1 Canberra Avenue
FORREST ACT 2603
Management of claims received by Finance
Claims that have been registered with Finance 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
Statute of limitations and legal processes
You should be aware that submitting your completed claim questionnaire or contacting Finance will not necessarily protect your legal rights should you choose to pursue your claim.
In particular, in any legal claim there is a limited period of time within which you may commence a claim in court and there may be other parties against whom you may have a claim. That limited period usually expires six years after the date on which a cause of action first accrues (referred to as the 'limitation period'). A claimant's cause of action may accrue upon reaching age 55, upon retirement, or on some other earlier date. Determining when a cause of action first accrues requires complex legal analysis and will depend on the individual circumstances of a potential claim. Even if your cause of action has not yet begun (for example, you have not ceased eligible employment), we encourage you to submit your claim as soon as possible so we can begin to assess it.
Finance is not able to provide you with specific legal advice about your individual circumstances. Accordingly, if you have any concerns about your legal rights or when your cause of action has begun or will begin in the future, we recommend that you consider obtaining legal advice without delay.
General Superannuation Enquiries
If you have a general inquiry about your Commonwealth superannuation, the Commonwealth Superannuation Corporation (CSC) is responsible for administering the major superannuation schemes available to the majority of Australian Government employees. If you have a query about your superannuation entitlement or the payment of your benefit or any other superannuation related matter, please contact the CSC. Common issues that fall within the CSC's responsibility are the CSS to PSS transfer choice, advice on options for preserving benefits, choice of superannuation fund, and reopening old memberships.
Further enquiries regarding Commonwealth superannuation schemes should be directed to the CSC.
You can contact Finance by telephone on 1800 227 572.