IN THE HIGH COURT OF AUSTRALIA Office of the Registry
Sydney No Sl40 of 1988 B e t w e e n -
THE UNIVERSITY OF NEWCASTLE
Appellant
and
AUDREY LILLIAN CHOPRA
First Respondent
STATE AUTHORITIES SUPERANNUATION
BOARD
Second Respondent
Office of the Registry
Sydney No Sl41 of 1988 B e t w e e n -
STATE AUTHORITIES SUPERANNUATION
BOARD
Appellant
and
AUDREY LILLIAN CHOPRA
Chopra(2)
First Respondent
THE UNIVERSITY OF NEWCASTLE
Second Respondent
l1ASON CJ
BRENNAN J
DAWSON J
TOOHEY JGAUDRON J
C2T 5 /1 /HS 1 2/3/89 TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 2 MARCH 1989, AT 10.15 AM
Copyright in the High Court of Australia
MR D.M.J. BENNET,_Q_g_: May it please the Court, in the first of those matters I appear for the appellant, the
State Authorities Superannuation Board, with my
learned friends,MR I.L. JOHNSTON, QC and
MISS D. COULTON, and we also appear for the second
respondent, being the same party, in the other matter.
(instructed by S.W. Spencer, Solicitor for State
Authorities Superannuation Board)
MR K.R. HANDLEY 1 QC: If the Court pleases, I appear for the University of Newcastle, an appellant in one
matter and a respondent in the other, with my
learned friend, MR B. WALKER.
(instructed by Messrs Minter Ellison)
SIR M. BYERS, QC: If Your Honours please, I appear with my learned friend, MR F.L. WRIGHT, for Mrs Chopra.
(instructed by Messrs Jones Staff & Co)
MASON CJ: Yes, Mr Bennett. MR BENNETT: I hand up an outline of submissions. MASON CJ: I notice the batting order has changed since
the special leave application was made. On that application the parties were in the reverse order.
MR BENNETT: I think there is no reason for that of which
we are aware, other than the order in which the matters were listed, Your Honour. There is no
arrangement and there was not on that occasion.
MASON CJ: I am not suggesting there was a collusive arrangement, Mr Bennett.
(Continued on page 3)
C2T5/2/HS 2 2/3/89 Chopra(2)
MR BENNETT: Yes. The question of whether my client or my learned friend, Mr Handley's, client has the greater
interest may be left to another day perhaps.
MASON CJ: The outline of submission is certainly succinct, Mr Bennett.
MR BENNETT: Two very short points, Your Honour, and two more very short points on my friend, Sir Maurice's, contention. What I propose to do, Your Honours, is
take you very briefly through the relevant facts,
then give Your Honours, an equ~lly brief, I hope,conspectus of the legislative history and then take
Your Honours to the two points of statutory construction.
The facts are in a very short compass. Your Honours will see at page 26 of the appeal book that in
January 1968 Mrs Chopra was appointed as a
lecturer at the University of Newcastle. At page 27 line 10 shows that the appointment was conditional
on her passing a medical examination:
mainly to determine your eligibility to
become a contributor to the ..... scheme. At page 28 arrangements were made for it and at
page 32 the medical certificate is produced. The result was an intermediate step that she be accepted - it was recormnended that she: Be accepted for permanent appointment and
for limited benefits.
At page 33 the Universi_ty advised her of the contents
of the certificate and then said at line 8:
As it is understood that you do not wish to
contribute to the Superannuation Scheme,
it will be necessary for you to apply for
exemption. It is pointed out that such
exemption debars you from consequently -
and it is suggested that she take that step. Page 34:we jump ahead eight years to an internal
memorandum in 1978 where,in the first paragraph
someone from the personnel department of the University
reports:
A recent check of our records revealed that there are two members ..... who are tenured and for whom no superannuation arrangement exists.
Going down to line 17:
Mrs A.L. Chopra, a Lecturer in Education
apparently indicated at the time of her
appointment, that she did not wish to
contribute ..... The Bursar's letter of ..... 1970
to Mrs Chopra mentioned that it was
C2T6/l/MB 3 2/3/89 Chopra(2)
necessary to apply for an exemption. However, an Advisory Officer of the Board informed me on
..... 1978 that Mrs Chopra has never been granted
an exemption ..... please advise what steps
should be taken.
Then there is a letter from the assistant bursar to Mrs Chopra referring to a 1970 letter saying:
A recent check of records has revealed that you
have not received an exemption ..... kindly sign
the attached letter.
There is note someone has put on it in ink saying:
She has not forwarded the letter mentioned
above and does not intend to do so because
she disagrees with the anti-female provisions
of the NSWSF. I agreed to withhold action for 1 week while she endeavoured to ascertain the
lastest position re alteration to "anti female"
rules of the fund.
At page 36 there is a further memorandum. This sets
out the latest position - we are now in 1979:
Ms A.L. Chopra, Lecturer, is not prepared to make a decision about seeking exemption or
membership because of "discriminatory rules
against females". She has taken no action since our last correspondence.
(Continued on page 5)
C2T6/2/MB 4 2/3/89 Chopra(2) MR BENNETT (continuing): At page 39: in 1984, for the
first time the University Academic Staff
Association writes to the University, saying:
I have formally advised Audrey Chopra to
request inclusion of her name on the New
Entrants' Scheme of the N.S.W. State
Superannuation Scheme. Further, our member
will request that the date of commencement
of permanent employment be included.
Then there is a letter from Mrs Chopra on the
following page, on 14 January 1985, which said:
On the basis of Union advice, I formally request that the University place my name
on the New Entrants' Schedule of the N.S.W.
State Superannuation Scheme, indicating
the date on which I commenced permanent
employment -
that, of course, being 1969.
I believe that it would be appropriate,
in view of the circumstances, to submit
my name on a single schedule with some
indication of the circumstances relating
to the application.
And at page 42, this is later the same year:
I wish to advise that I will retire
from the service of the University as of
31st December -
and at page 59, Your Honour will see some short
cross-examination which suffers or benefits
from the same brevity as the submissions. I said to her: At all times since you have been employed by the University you have known, have you
not, the meaning of the word superannuation? A. In the limited sense in which it was conveyed to me by the University.
Q. You knew that there was a State Superannuation scheme? A. Yes.
Q. You knew you were eligible to join it? A. Yes. Q. You knew that the way a superannuation scheme works is that there are contributions
made by employer and employee, interest
is earned on that and, ultimately, a larger
payment is made back to the employee? A. Yes.
C2T7/l/ND 5 2/3/89 Chopra(2)
Q. You also knew throughout your career with the University that nothing was being
deducted from your salary? A. Of, of course, yes.
Q. You knew also that the University was not making any payments on your behalf?
A. Yes. And in re-examination she was asked about the meaning and she says that she was told when
she joined the University initially that she
was advised her contribution rate would have
been a large figure, more than half her net
salary and she understood that was her only
option and had she been informed she could have
done it in a different way she would have done
it.
MASON CJ: What is the relevance of that, Mr Bennett?
MR BENNETT: We would submit, none, Your Honour, but I am reading it out of fairness because that is
what was put in answer to what I have just read
Your Honours.
(Continuing on page 7)
C2T7/2/ND 6 2/3/89 Chopra(2)
MR BENNETT (continuing): Those are the facts. The legislation: we have prepared for Your Honours a bundle with
numbered pages setting out the relevant sections andI hand to Your Honours seven copies of those. These
are selections from the legislation at various stages. If Your Honours start on page 5 - this is the Act as it stood in 1969 - Your Honours will see that: "Employee" means a person employed by an
"employer".
The rest of the definition is irrelevant. It
excludes supreme court judges and various people.
MASON CJ: Mr Bennett, could I ask you a question about your outline of submission, paragraph 3, the second
sentence which states:
inapposite. It is subject to the notice that has This finding was not upset by the Court of to the notice of contention).
MR BENNETT: Yes, that phrase is a technical phrase which is been given to us of matters which are intended to
be raised by my learned friend.
MASON CJ: By the respondent?
MR BENNETT: Yes, Your Honour. I have called it a notice of contention, which is really the Court of Appeal
phrase for it. It is not, I think, the phrase used
in this Court. But my friend will be, as I understand it, challenging that finding of His Honour
and we have prepared separate submissions to hand up in reply on the assumption that my friend does that.
We have been given notice about it.
So an "employee" is "a person employed by an
employer". An !'employer" is a list of the. government
and various other bodies~ and Your Honours can take
it that includes the University of Newcastle.
Then the important one is "contributor", and a "contributor" is an -
employee who is contributing under this
Act -
and there is a qualification. Then page 2, section 4 sets out the basis which was encapsulated in the
question I read to Your Honours from my cross-examination:
There shall be a "State Superannuation Fund"
into which shall be paid the contributions
of employers and of their employees under
this Act; and from which shall be paid the
benefits.
C2T8/l/BR 7 2/3/89 Chopra(2) So the structure is, one has a fund, moneys go in
and moneys go out in accordance, no doubt, with
normal actuarial principles governing such funds.
Page 3, section 11(1) provides:
Every employee shall ..... contribute to the
Fund -
so it is a compulsory fund. Page 4 has a provision for opting out. At about point 8:
Provided further that the Board may, on application as hereinafter provided, exempt
from contributing -
certain people.
(Continued on page 9)
C2T8/2/BR 8 2/3/89 Chopra(2)
MR BENNETT (continuing): The next relevant section is llA and it starts on page 8, at the bottom of the page
which provides an obligation on every employee:
As soon as practicable ..... submit himself
to medical examination -
and then, on the following page:
(2) Where the report of the Chief Medical Officer indicates such employee is suffering from any physical or mental defect ..... the
Board may -
(a) refuse to accept .....
(b) accept ..... for limited benefits; or
(c) postpone his acceptance -
Your Honours will recall in this case, the medical officer recommended the middle one of those three.
An employee accepted as a contributor or as
a contributor for limited benefits ..... shall
make contributions as from the first day -
et cetera. On the next page, section 16 provides for the employer's contributions:
Each employer shall contribute to the Fund
regular payments at prescribed period -
Section 27 on page 12 provides that:
On the retirement of a contributor he shall
..... be entitled to receive a pension
according to the number of units for which
he contributed -
and then there is a scale and there are, then, on page 14, the beginning of a number of other sections
which provide for other benefits on retirement,
dismissal, matters of that sort, death. Section 28,
for example, says:
On the retirement at or after the age of
fifty-five years of a woman who has
contributed for a pension ..... the full
pension for which she has so contributed
shall be payable.
I will not take Your Honours to any others of those. That was the structure of the Act as at the relevant
time.
C2T9/l/SH 9 2/3/89 Chopra(2) One of the matters which I will be addressing in my submissions and the matter on which almost the
whole of the Court of Appeal judgment turned was
whether you are a contributor if you are in thecircumstances of Mrs Chopra, someone who should
have been contributing, the University should have
been deducting or there should have been an application
for an exemption. None of those happens and one has to determine is she a person who is contributing or
not? That is the second question.
Now, in 1976, there were some amendments which
start at page 18. I would only go through them very briefly now because they become more important in
context on my friend's contentions but, at page 18,
Your Honours will see the definition of "contributor"
was changed. The old definition had been "an employee who is contributing". The definition now is:
"Contributor" means an employee -
and then there is an exclusion:
(a) an employee while exempted -
(b) an employee while rejected or not
accepted -
and there is an exemption under l0H.
One of the matters which arises on the contention
is whether Mrs Chopra was a person who was not accepted
as a contributor and, therefore, exempted under that
definition. Otherwise, it would seem, subject to that
exception,that she would have become a contributor
within that definition although not within the earlier
one. However, there was also a provision added which
appears at page 21 and this is the other issue which
arises on the contention.
(Continued on page 11)
C2T9/2/SH 10 2/3/89 Chopra(2)
MR BENNETT (continuing): Your Honourswill see section lON repeats the old section 11 and says:
Subiect to this or any other Act, every employee shall contribute -
and then section 10 0(2) provides:
An employee who was not contributing
to the Fund on 12th January 1977 -
we say Mrs Chopra was not contributing on that date
or at any time -
but who was required by section 11 to
contribute to the Fund on that day -
well, clearly, she was -
shall, subject to section lOW contribute
to the Fund.
So the section provides that she shall contribute
to the fund but, of course, there was a previous section saying she shall contribute too. This
was disobedied by all relevant parties right up
to 1985.
If I may move now to 1985 to page 23, because
th i s i s the part of the case w i th which we are
principally concerned and the part which the
Court of Appeal suggested it was not argued. In
fact, as I will show Your Honours, it was argued
very fully. In 1985 it was apparently decided that the scheme would be closed. There would be a cutting
off. People who were in would stay in. Those who were not yet in would join a new scheme and
there were provisions for that closing exercise,
and there was an Act passed which was No 47
of 1985, the relevant part of which commences at
page 23, and then there was an amending Act later
one can see from it, no doubt intended to cover a in the year retrospective to 1 July which was, as number of defects in the earlier Act, and it is
the construction of those Acts with which we areprincipally concerned. Your Honour will see section lA on page 23,
the first of the amending Acts,provides in
subsection (2):
Notwithstanding any other provision of
this Act -
"this Act", of course, is the whole SUPERANNUATION ACT
because it is a section which is inserted -
C2Tl0/l /HS 11 2/3/89 Chopra(2) a person is not required or entitled to
become a contributor to the Fund and is
not entitled to elect to become a
contributor to the Fund -
(a) in the case of a person who was an
employee, but was not a contributor,immediately before the prescribed
day ..... except in accordance with
regulations ..... or
(b) if the person becomes an employee
after the prescribed day.
So, unless one fell within the regulations, a person
who was an employee but not a contributor was
excluded, and one would have thought that would
clearly apply to Mrs Chopra. The Act is drawing
the very distinction which we say has to be made.
There were then some regulations which 1 will
not take Your Honours through. They are set out on the next few pages which define how you were
exempted. Then on page 26 there is the SUPERANNUATION (FURTHER AMENDMENT) ACT which was enacted, we would
submit, to make assurance doubly sure, and
Your Honours will recall, going back to page 23,
that on the argument which the Court of Appeal accepted, that Act might not work to do what we
wish it to do because the Court of Appeal said,
"You are a contributor even if you never contribute",
even under the first of the Acts which said, "A
contributor is an employee who is contributing".
So, if one looks at the words of section 1A(2) -
BRENNAN J: Excuse me, Mr Bennett. At the time that the amendment came in on page 23 was the definition of
"employee" and was the definition of "contributor"
still that which appeared on page 18?
(Continued on page 13)
C2Tl0/2/HS 12 2/3/89 Chopra(2)
MR BENNETT: Yes, Your Honour. So that Your Honour can see the mistake that has been made in the drafting,
an employee who is not a contributor, one could say,
must be a person within the three exceptions, but
not a person like Mrs Chopra, who simply is not
contributing. Under the very old Act where the
contributor was an employee who is contributing, the
situation might have been different. But that was the ambiguity which this Act created. Your Honours will not be concerned with solving that problem because on page 27 in the amending Act; which was
retrospective, that was cured. Your Honours will see section lA provides: Notwithstanding any other provison of this
Act (except subsection (3)), a person is not
required or entitled to commence contributing
to the Fund on or after 1 July 1985.
Subsection (1) applies -
subject to an exception -
to a person who was previously a
contributor to the Fund, whether before or
after 1 July 1985.
So even if she was a contributor, as the Court of Appeal
held, prior to 1 July , she was not required or entitled to
commence contributing. Now, just stopping there, one would have thought that that was a short, simple and
totally an answerable proposition.
What the Court of Appeal said at page 117,
line 10, was this:
For these reasons, in my opinion, the
plaintiff became a contributor when she
became an employee of the University. It is
accepted that, if this be so (subject to a
matter I shall mention), the plaintiff
remained a contributor until her
retirement.
Now, we dispute that, but it is said to be subject to
a matter and he does come to that:
On that basis, it is not necessary to
consider the alternative bases upon which,
as the plaintiff submitted, she became a
contributor consequent upon amendments to
the legislation which took place from timeto time.
That is true. The way the case for Mrs Chopra was opened in the Court of Appeal was to say, well, she
either became a contributor in 1969 or she became a
C2Tll/l/JH 13 2/3/89 Chopra(2) contributor in 1976 or she became a contributor
in 1985. And if we get up on any of those, we get up:' That is the way it was put to the Court of
Appeal. The Court of Appeal correctly says: It is not necessary to consider the
alternative bases.
It ignores, of course, our submission that even if
she did become a contributor in a technical sense,
she was excluded by the 1985 amendments. Now, Their Honours go on and say this: There was a suggestion in argument, I
think, that if the plaintiff became a
contributor when she became an employee
of the University, she ceased to be such
because of the effect of the 1985 legislation.
I do not think that that suggestion was
pursued.
I will hand to Your Honours in a moment the argu.~ents
and the submissions in which it was pursued. That was
really a major part of our case and is today.
(Continued on page 15)
C2Tll/2/JH 14 2/3/89 Chopra(2) MR BENNETT (continuing):
If "is contributing" means what I have held it to mean, I do not think that the subsequent
legislation had such an effect.
Now, no basis is given for that proposition in the
face of section 1A(2) and, in our respectful
submission, it cannot stand with it. May I just,
in order to dispel the suggestion that we did not
argue the matter, hand to Your Honours two bundles.
The first contains three pages from the transcript of argument and the second is the outline of
submissions which was handed up in the Court of Appeal
on behalf of my client.
BRENNAN J: Mr Bennett, what was the definition of "contributor"
at the time that page 27 came into effect?
MR BENNETT:
It was the same, Your Honour, the same as it had been in 1976, which was"contributor"means an "employee"
subject to the three exceptions. BRENNAN J: Yes. MR BENNETT: I am reminded there was a minor but irrelevant change to the wording of the third exception but
Your Honour need not be concerned with that. If I can just show Your Honours what was said below.
If Your Honours have the transcript,I have underlined,
for convenience, the passages to which I wish to refer,
and Your Honours have it with the underlining. At page 11, just below my name, half-way down the page:
In my submission it is quite clear that those people to whom the schedule applies are those who
are employees who are not contributing and who would,
but for the provisions, be required or entitled
to contribute.
Mr Handley, on the following page - and there was then lengthy argument about the rest of the schedule
which I will not take Your Honours to:
In relation to Schedule 21 -
Mr Handley says at point 3 -
it is clear Parliament had in mind a category of employees not contributing to the fund but to whom the Act on its true construction
either applied in that they were required
to contribute or they were within the scope
of the Act in that they were entitled tocontribute.
C2Tl2/l/MB 15 2/3/89 Chopra(2) It is made even clearer on the nex~ page, when
His Honour Mr Justice Priestley asked my learned
friend a question which indicates the very
misunderstanding which appears in the judgment.
Mr Justice Priestley says in his question, in line 4: I think you have said if 1 is to be answered
yes then there is no point in answering any
of the others.
Question 1 - this appears in the judgment of
Mr Justice Yeldham - was "was she a contributor in
1969?" Mr Handley replies:
Except you then have to go to 11.
And 11 appears at page 69 of the appeal book and
that is whether she is barred by the second amendment
in 1985. So Mr Handley gave the correct response indicating that even if that were so we still
relied on that. His Honour then said:
I follow that.
Then a bit lower down His Honour asked:
If you answer 1 No and 2 Yes, where do you
go then?
Mr Handley said:
(Continued on page 17)
C2Tl2/2/MB 16 MR BENNETT, QC 2/3/89 Chopra(Z) MR BENNETT (continuing):
You still then go to question 11. So, Your Honours, we would submit that
the outline
of submissions below which I have given Your Honours
also makes the same thing clear. Your Honours will see at the very end of it, the second-last page,
paragraph 2, the last line on the second -last page_;
"The change in definition between paragraph 1A(2) (a)"
in the first 1985 Act and paragraph l(l)(a) of
the second Act''demonstrates that persons such as the
appellant were intended to be excluded unless they
came within a relevant exception." So the submission
was clearly made and Their Honours are, with respect,
in error in suggesting that it was not made.
I now turn to the two submissions of law
which I need to make in-chief. The first is a very
short, very simple, one. It is that the provisions
on page 27 mean what they say and that what the Act
has done is to close off, and it has taken the
criterion for closing off, not the technical criterion
of whether you are a contributor, but the actual
criterion of "are you contributing?"
BRENNAN J: Do you not have to go a little further than that and say it means just not what it says but something more?
Not only does it deal with entitlement to contribute;
it also deals with an entitlemmt to take from.
MR BENNETT: Well, Your Honour, I get that from the other
provisions of the Act because, if she is not entitled
to contribute, she would not be entitled to take
from. What the respondent seeks to do is to say, "I will now pay the payments for the last 20 years,"
or whatever the payment is - I suppose 16 years,
"and have paid to me," no doubt by way of set-off,
"the amount to which I am entitled," which, of course,
will be larger. She does not and cannot say she is entitled to the benefits without making those
payments.
BRENNAN J: Why not? MR BENNETT: Because the section 27 and all the other sections which deal with benefits refer to the number of units
for which she has contributed and she must, therefore,
contribute to be able to obtain the benefits.
BRENNAN J: I see.
MR BENNETT: So what she is seeking to do is to commence making contributions or, at least, make it in one lump sum
by way of set-up, but to make contributions and, if
heading on page 27 makes clear, to achieve the closure
she cannot do that, she cannot obtain any of the benefits.
C2Tl3/l/VH 17 2/3/89 Chopra(2) of the scheme and it is designed, among other things,
to deal with various possible categories of people.One the categories it specifically sets out to deal with is persons who were not making contributions.
It does that, as Your Honours will see, by giving them a last chance. Subsection (3) to which lA
is subject, provided a last chance and that is
something which I will deal with in a moment. It was held, for various reasons, that the last chance
had not been successfully availed of by
Mr Justice Yeldham and the Court of Appeal did not
need to deal with that rr~tter. That is something
raised by my friend in his contention.
What it said was that - perhaps I should take
Yours Honours to page 28 and, so far as is relevant,
this was a statutory re-enactment of the regulations
which had occurred earlier in the year, only thistime it was in the form of a statute. That says
that:
Except as provided by subclause (2), this
Schedule applies to a person -
(a) who was, immediately before 1 July 1985,
an employee but was not contributing -
well, that is Mrs Chopra -
(b) who would, but for section lA, be required
or entitled, subject to the provisions of this
Act, to contribute.
Well, I have shown Your Honours that she was bound
to contribute at all times so she is within that.
So the schedule applies to her. There are some
exemptions which are not relevant and then it says:
(Continued on page 19)
C2Tl3/2/VH 18 2/3/89 Chopra(2) MR BENNETT (continuing): 2(1) A person to whom this Schedule applies
may elect to contribute to the Fund if -
(a) before 1 July 1985, the employer of the
person has notified ..... or
(b) on or before 31 December 1985 - (i) the employer of the person notifies ..... or
(ii) the person lodges ..... a certificate -
and, whether that was done, is something which arises
in the contention. But, Mr Justice Yeldham held and,
at the moment, we have that decision in our favour,
that that had not been done.
So, we would respectfully submit that the
construction placed on the provisions by the Court
of Appeal defeats the clear language of the schedule
and, not only the clear language, but the clear
purpose because the purpose of the schedule is to
close off the scheme unless you come within the
specific provisions of the schedule 21. Now, really, that point is as short as that and there is nothing
more I would submit I need to say about it.
It is particularly made clear by the fact that
the first attempt in 1985 fell foul of - or might
be thought to have fallen foul of - the very problem
in this case and that was cured by the addition of 1A(2) saying that, even if she was a contributor
in a technical sense, it was to apply. So, the argument that, surely this could not have been
intended to take away vested rights, simply does not
run.
May I say this about that: if she was a
contributor, she was a contributor in a very technical sense because she was, as the correspondence
shows, a person who had, despite requests to do
something about it, both when she joined and eight
years later, had deliberately elected to remain
outside the scheme. The university, of course,
should have taken the matter further than it did
but it did not and the result was one had a person
who never contributed and who was never placed on the books of the fund and it would be surprising, one would think, if such a person was entitled to come forward and say, "Well, I want to make a payment
now and receive money now", contrary to the whole
principle of superannuation which is the accumulation
C2Tl4/l/SH 19 2/3/89 Chopra(2) of money and the gathering of interest on that
money, with the ultimate return to those investingin it at the end of the day.
BRENNAN J:
Mr Bennett, am I right in thinking that the underlying proposition in your submission is that
whether a contributor or no, there is no entitlement under section 27? MR BENNETT: Yes, Your Honour. That is ultimately what it comes to.
BRENNAN J: Well, then, that is the primary question, is it
not?
MR BENNETT: It is not the way the matter has been argued in
the three courts but, in one sense, it is, Your Honour,
yes, ultimately.BRENNAN J:
I suppose you can approach it by saying, "Well, she is not a contributor so 27 does not have any
application for that reason". MR BENNETT: Yes, well, that certainly is the first way we approach it but we say, in any event, the structure
of the Act, certainly prior to the 1976 amendments,was that a contributor was a person who contributed.
Then, after 1976, there was an exemption which, we
say, applied. If that did not apply, the scheme
closure provisions determined that people who were
not contributing would not be entitled to unless
certain conditions were satisfied and that, really,
was the structure of it.
(Continued on page 21)
C2Tl4/2/SH 20 2/3/89 Chopra(2) MR BENNETT (continuing): It would hardly be likely that
the legislature would have intended to say,
"You are not entitled to commence contributing
but you will still be entitled to receive moneysfrom the fund even though you've never actually
contributed." That would be a very bizarre
intention to attribute to the legislature, we
would respectfully submit.
I have dealt with 1 and 2 in my submissions.
In re 1 a t i on to 3, I w i 1 1 no t de a 1 w i th th a t beyond saying that the argument is, and Your Honours
will see it when the contention comes up, the
argument depends upon whether clause 2, on page 28,
in effect gives the University an election as
to whether or not it notifies but that is a
matter which, as I say, we succeeded on and my
friend has to upset His Honour's decision on
that.
If Your Honours are with me on what I have
submitted so far, that is the end of the case.
However, I should make the alternative submission
and that is that the scheme of the Act, as it
stood prior to 197~ was that a person was not
a contributor unless she was actually contributing
or possibly in a pipeline towards doing so and
I will explain what I mean by that in a moment.
That involves going back to page 1 of the
statutory materials and, in our respectful submission,
nothing could be clearer than the words of the
definition: an "employee" is any person who
is employed by the government or the various d • 11 'b II '
b o 1es; a contr1 utor 1s an:
employee who is contributing -
One can refer, as the court did, to situations where words such as "contributor" have been
held to have a wider means. The obvious example, I suppose, is the word "taxpayer". When the late Mr Clyne had various appeals before this
Court he was, no doubt, described in documents as the "taxpayer" although that may well have
been a euphemistic description. But there,
of course, the INCOME TAX ASSESSMENT ACT specifically
defines a "taxpayer" as a person in receiptof income rather than a person who is paying
tax.
The Court of Appeal did discover an early
common law case involving the question of a
statute providing that contributors to a rate
voted for a local council and it was held that
those who were going to be rated at the next
C2Tl5/1/ND 21 2/3/89 Chopra(2) rate were contributors even if they had not
yet made a contribution.
But, of course, that, we would submit, is
accommodated by my description of a pipeline.
If I commence employment on a Monday, permanent
employment, on the basis that I am to be paid
every Friday, one would say, on the Monday or the Tuesday, 11 1 am in receipt of income", or
"I am a wage earner", although I have not received
any wages nor have I received any income.
(Continuing on page 23)
C2Tl5/2/ND 22 2/3/89 Chopra(2)
MR BENNETT (continuing): As a matter of ordinary English, one would take a person in that position as being
a person who is generally in receipt of it or
earning it. But, if on that first Friday, I say
to my employer, "took, I really do not want any
money" and he says, "Well, that is fine, I will not
pay you any", and I keep working for him for five
years without receiving any money with he and I both
accepting that the employment will be gratuitous,
even if it is contrary to a statute which provides
that he must pay me, I am not a person who is in
receipt of income or earning income or a wage-- earner
or any of those things.
In other words, it is not inconsistent with my
submission to say that if a person takes up
employment as a public servant or as an employee of
one of these bodies like the University of Newcastle,
and in the normal course that person is not going to
have a medical examination for a few weeks and then
superannuation contributions will start a few weeks
later, there is nothing inconsistent or surprising
with saying such a person is a contributor from the
initial date; or that such a person is a wage earner
or a public servant or in receipt of income from the first day of employment. But that is very different from this case where both parties to the
arrangement have been at pains the whole way through
the transaction to ensure that there were no deductionsbeing made and she was not a person who wanted to have,
or whose employer wanted her to have, anything to do
with the superannuation scheme. Certainly, it wascontrary to a statute.
But there is no provision saying there is no
room for the application of the equitable doctrine
that equity regards as done that which ought to be
done, particularly in a statute which goes out of its
way to draw the distinction and ~ay, a contributor
is an employee who is contributing. One sees that sort of structure throughout the Act. If one
goes through some of the language of it,on page 9
Your Honours will see: the Board may -
(a) refuse to accept such employee as a contributor; or
(b) accept such employee as a contributor for limited benefits;
and so on, distinctly suggesting that one can be an
employee but not a contributor. Then, llB:
(1) Any employee whom the Board ... refused to accept as a contributor ... shall upon his election -
C2Tl6/l/JH 23 2/3/89 Chopra(2) have certain things happen. It becomes even clearer
when one goes to section 27:
(1) On the retirement of a contributor he shall (except where otherwise specially
provided) be entitled to receive a pension
according to the nu,_~ber of units for which
he contributed.
Now, if Your Honours look at that table,
Your Honours can see, if one projects it in graphic form, that if one inserts in the left-hand column,
above the top, zero units, the number one would get
is zero. I will just demonstrate that. Your Honours see four units is $260; two units is $130.
It ~s $65 per unit and that seems to apply right
through. Twenty units is $1300 and so on and 40 units is $2600.
So, zero units is zero benefits. And that is
the number of units for which she contributed. Not the number for which she ought to have contributed or
for which she was required to contribute, but for
which she actually contributed.
TOOHEY J: One of the things that seems to have troubled the Court of Appeal was the instance, which is not relevant here, but it was thought to throw some light
on the meaning of the section, of a _ person whose
coritributions were not deducted due to error on the
part of the employer.
MR BENNETT: Yes, well there are two seperate situations there. If you have a person who becomes a contributor
and then the employer, by some mistake, ceases to
deduct, the person probably does not cease to be a
contributor. But if there is never a payment, by
error or anything else, then, I would submit, the
person is not a contributor-who has never contributed.
(Continued on page 25)
C2Tl6/2/JH 24 2/3/89 Chopra(2) MR BENNETT (continuing): It may be that if tt2re is just a
short-term failure for one or two weeks, one might
say, well, that is a pipeline case. But where there is an actual intention, a deliberate
intention by the employer not to contribute and
by the employee to be paid without deduction,as
here, to say that there the person is a •ncontributor",
in my respectful submission, flies in the face of
the language in the Act.
BRENNAN J: But these are all statutory rights, are they not,
and statutory obligations?
MR BENNETT: Yes, Your Honour. BRENNAN J: If you take the case that Justice Toohey was just
putting to you, the relevant phrase, I should have
thought, in section 27 was the number of unitswhich the contributor at retirement was contributing
for. Now, what happens if, before retirement, the employee by mistake does not have his contributions
deducted?
MR BENNETT: Your Honour, the phrase "is contributing", we would submit, does not necessarily require that
every single instalment be deducted. What it does require is that one be a person who is contributing
in the general English sense of those words. If one
had a person who had been contributing the whole way
through and accidently the last week at the moment
of retirement was omitted, one would have no
difficulty in saying that person was a contributor
who was contributing and there had been simply an
accident in relation to the last item. But that isvery different from the sort of case where there is
a deliberate failure to contribute for the whole
period.
It is one of those cases, I suppose, where one
has to cite that old dictum that, "I know not when
day begins or night ends, but I know that midnight
is night and midday is day". There are difficulties in drawing the precise line in working out how one
defines "contributor" in relation to people who makeone payment only, who make no payments, who are only
there for a week and the payment is accidently not
made, and so on. There are a lot of difficult cases.
But what ever one says about those cases, one has
no difficulty saying about this case that Mrs Chopra
was not a contributor.
The judgment dealing with this aspect commenced
at page 106 and at line 21 His Honour says:
In my opinion the contention of the
plaintiff is correct. The words "who is contributing under this Act" refer, not to
C2T17/1/BR 25 2/3/89 Chopra(2) what in fact is being done by way of
contribution, but to the status of the
employee under the Act. This is the conclusion to be drawn both from the
structure of the Act and from the manner
of its operation.
He then refers to a number of sections - and I have
already taken Your Honours through most of those.
At page 109 His Honour said:
In my opinion, three things emerge from such legislation.
We would not dispute any of these, I should say:
First, every employee was bound by law to
to contribute -
that is so.
Second, the legislation envisaged that some
employees might not be so obliged to
contribute to the Fund but the obligation to
contribute existed unless and until the employee
was exempted -
that is clearly so.
And, third, the payment of the amounts required to be contributed was neither voluntary nor left to the employee: the
employer had a statutory obligation to
deduct -
(Continued on page 27)
C2Tl7/2/BR 26 2/3/89 Chopra(2) MR BENNETT (continuing): That is clearly right. We do not dispute any of those. Then at the bottom of the
page His Honour says that counsel submitted that:
unless a person actually pays money by
way of contribution to the Fund, she
does not become a member of the Fund.lt followed from this, the argument ran,
that she was a "contributor" within the
definition only so long as she was in this
way paying money to the Fund. Therefore,
it was argued, if by mistake of the employer
or the employee, money was not deducted
from the salary or was not paid to the Fund,the employee did not become or did not remain
a "contributor". And this notwithstanding
that the failure to pay moneys to the Fund
resulted from accident or misconstruction
of the Act and was a breach of -
duty. Then His Honour said: It would, I think, be surprising if such was
the intention of the legislature.
Just stopping there, the intention of the legislature
is really established by section 4. It sets up a fund into which moneys are paid and out of which
benefits are paid. It uses the word "superannuation",
a word which has a recognized meaning in the commercial
sense of the very sort of fund we are talking about
and, in my respectful submission, it would be surprising
if the government had said, "Certain people will havestatutory rights which will enable them to be paid
from this fund, even though there has been no
contribution". One excludes, of course, the
situation of the man who is knocked down by a bus
on his first week of work. He, of course, is part of the actuarial calculation, but it is very
different if you have a person who deliberately,
and with the full connivance of the employer, stays
outside the fund for the whole of the term of employment lasting 15 or 16 years and then says,
"Because I should have been contributing I wish
to be admitted". We would submit that that is more suprising. His Honour goes on: An employee would, on this construction,
lose her superannuation benefits if her
employer, through no fault of the employee,
failed to perform its statutory duty.
The answer to that, of course, is that normally, of
course, the employee would know. The employee would be receiving money without deduction in such a
situation.
BRENNAN J: Where is the section which provides for deduction?
C2Tl8/l/HS 27 2/3/89 Chopra(2)
MR BENNETT: Yes, Your Honour, that is, 1 think, section 16.
MASON CJ: lt is section 20, is it not?
MR BENNETT: Yes, section 20, Your Honour. lt 1s not 1n my summary.
BRENNAN J: Thank you. MR BENNETT: At line 14: lt may, of course, be said that an employee from whose salary deductions have not been made and paid to the Fund should have no
entitlement to benefits from it. But the Act is intended to confer benefits - we would submit that is looking at one side and
not looking at the other. The Act is intended to confer benefits correlative to contributions.
Then His Honour says:
As has been said, "is" is active participle
which generally requires that the
characteristic to which it refers, eg,
"is contributing", is to apply at the time
which, for the purposes of the statute,
is relevant.
FISHER V FORD, which is referred to by His Honour
there, was a case involving a plea under the old
system of pleading. There was a declaration which
said, among other things, "that a deed which is in
the possession of the defendantl' - the plea said
"the deed is not in the possession of the defendant".
Under the quaint procedure which existed at the time
there was then a demurrer on the basis that the plea
did not meet the declaration because the declaration,
when one adds the implication, says, "the deed at
the moment of the declaration is in the possession of
the defendant", and the plea says, "at the moment
of the plea it is not and therefore the plea had failed to answer the declaration".
(Continued on page 29)
C2Tl8/2/HS 28 2/3/89 Chopra(2)
MR BENNETT (continuing): In accordance with the practice at
the time, the court upheld that demurrer and refused
leave. to amend and gave judgment for the plaintiff.
But the case is a case solely on the quaint strictness
with which old pleadings were construed. It has, we would submit, nothing to do with the word "is" and
certainly is not a case which is of any real value
in answering the sort of problem we have today. Now, at line 12 on page 111, His Honour says: But at least two things may be said of the
operation of the phrase:
That is the phrase "is contributing'.'·
first, a phrase of this kind does not require
that payments be actually made at the
relevant time; and, second, a person may
properly be described as "contributing" when,
though not actually paying money, she is under
an obligation to do so.
We would respectfully dispute both those propositions
except in the context of what I have colloquially
described as "the pipeline." We accept those concepts in relation to a person who is going to
contribute or who is intended to contribute where there
is some short period before the first one is made. That is like the wage earner on Monday who has not
received his salary till Friday. But it is not, we would submit apposite when one is taling about
the type of case here.
Then there is reference to the meaning of
"contributing;" there is reference to REG V KERSHAW,
which is the case I described to Your Honours.
It is important to note that in that case the people
who were sought to be excluded were those who were
going to have to pay rates but who had not in the
past; no doubt because they had moved to the area
recently or something of that sort. That is clear
at the top of page 113 says: from the judgment of Lord Campbell. His Lordship, I think the word 'contributing' does not mean only those who have contributed or already are assessed to a rate already made,
but includes all who are liable to beassessed to a rate if one were now made; and this a reasonable construction for it is important to those who are so liable that there should be a proper person to be surveyor,
as he will have the power to assess them tothe next rate, whether heretofore they had been assessed or not.
And the others make that clear too. What he is
C2Tl9/l/VH 29 2/3/89 Chopra(2) talking about is people who are going to be
assessed to the next rate. The test case which was not dealt with in that situation - , the type of person who would be relevant if it were
this case, is the person who had moved into that
area and had agreed with the council pursuantto a misconstruction of some exemption that he would
not be liable for rates and would not pay rates and the council had not been charging rates for
five years and did not intend to charge them; he
had not been paying and did not intend to pay; but
who, on what the court held to be the true
construction, would have been liable. That is the
test; that is the relevant person for this case
and we would submit that such a person would not
have been included had it arisen.
It is made even clearer on page 114 at line 5,
where Your Honours see against the word "but"
in the left-hand column in the judgment of
Mr Justice Erle, His Lordship says:
(continued on page 31)
C2Tl9/2/VH 30 2/3/89 Chopra(2) MR BENNETT (continuing): But it seems to me that he who will contribute
to the next rate is as much within the
present tense 'contributing' as he who has
contributed to the last.
But one could not predicate at any relevant point
that Mrs Chopra was a person who at any time during
the period"will contribute". I think those are the only matters in the judgment to which I wish
to refe~. At page 115, at the top of the page, His Honour says:
The ordinary requirement is that contributions be
made, not by the employee herself, but by the employer for the employee. It would,
I think, hardly be the intention of legislation
so framed that an employee should not have
the benefits of a contributor because the
employer, by error of fact or of construction
..... did not make forward such deductions.
But if this be so, then an employee "is
contributing" notwithstanding that, by such
an error, no payments have been made for him to
the Fund. She is, therefore, a contributor because she is liable to contribute.
We submit that is just simply not what the Act says
at the relevant time. He says: In the original Act the draftsman appears to
have assumed that a person might be a
contributor notwithstanding that, at the
relevant time no payments were being made
by or for her. In the original Act the
definition was in the form to which I have
referred: "Contributor" meant "employee who
is contributing under this Act".
His Honour then says:
Contributions ceased when a contributor -
attained a certain age.
There is nothing to suggest that, for example,
a female might not continue as an employee
after the age of 55. But the entitlement to ..... if it satisfied. the ..... conditions ..... were so
up to 55.
So what is being said there is that if you have a person who contributed up to 55 and then continued
employment but ceased to contribute under the old
definition - this was, I think, what may have been described
as the anti-female provisions when a woman stayed
C2T20/l/MB 31 2/3/89 Chopra(2) on after 55 - that person was a contributor although
not continuing to make contributions. But there is no difficulty there in using the phrase "is
contributing" to refer to a person who had made
contributions at a relevant time and had becomea person with the status of contributor and, indeed,
the Act itself recognises that qualification.
But that is very different to saying that a person
who never makes a contribution is not in that
position.
Now, finally, on this aspect, at page 116
there is a reference to ATHANASIOU's case. That
was a case which involved the situation which had
been discussed of a medical examination. What happened there was there was a first medical
examination which was satisfactory and then there
was a second medical examination which was
unsatisfactory and the court held there was no
authority to give the second medical examination
and that the person had become a contributor.
But that is very different to this sort of case.
It was not necessary for that decision for the court to determine conclusively the meaning of the word "contributor" in so far as it applied
to a person who had never made a contribution.
(Continued on page 33)
C2T20/2/MB 32 2/3/89 Chopra(2)
MR BENNETT (continuing): The case is reported in (1986) 12 IR 204 and Your Honours will see that the
whole of the decision turned upon the problem which
arose in relation to the medical examinations. But
the passages which were referred to were, first, at
page 213 in the judgment of the President,
Mr Justice Kirby under the heading "conclusion".
His Honour says:
This view of the legislation results in
an entitlement to superannuation in respect
of a person who, though he did not have
evidence of terminal carcinoma when he joined
the employ of the State, did have it when he
was made a permanent employee and thus
obliged to join the Fund. What took place in April 1982 was undoubtedly a medica.l
examination to which the deceased submitted
himself. Moreover, it was one which was
prescribed and it reached the prescribed
standard as I have explained it. But the Board did not ..... take the steps by which it
could disentitle the deceased to the valuable
rights to superannuation which the Act afforded
him. It did not form the opinion that the
deceased had failed to pass the examination
and it did not, on the basis of that opinion,
then treat him as if he had not been an
employee. The fact that this was the result of a mistake, administrative error or
inefficiency is beside the point. The employee is entitled to the valuable benefits
afforded by the Act unless the Board, on the
basis of the medical examination to which the
employee submits himself and which reaches the
prescribed standard -
There is no suggestion in that case that he had not
made contributions and no part of the argument seems
to have been based on his failure to make contributions.The dictum which was relied upon is that which appears
at the very end, in the judgment of Mr Justice Priestley at page 218 where His Honour says, in the second-last
paragraph:
It is true that the result reached by
upholding this appeal is an odd one. Equally
odd, however, would be the situation if the
Board's submission were correct. To understand this it must be borne in mind that the Act
compulsorily makes a person a contributor to
the Fund once he becomes an employee. Once an employee and thus a contributor -
that is, under the 1976 amendment, of course -
C2T21/l/SH 33 2/3/89 Chopra(2) he only ceases to be a contributor if one
of the disqualifying things ..... happens.
If the Board's submission is correct so
..... Mr Athanasiou did not submit himself
to a prescribed medical examination then
those facts would bring it withins 10c(6).
That, of course, is wider than the court needed to go for that case. In any event, it is dealing with the 1976 amendments and we, at this stage, have the
benefit of a decision that wd fall within an exception to the 1976 definition. The issue we lost on was whether we fell within the earlier definition
which simply said, "A contributor is an employee who
is contributing" and this case is no authority on
that question.
So, for all those reasons, we would submit that
the decision of the Court of Appeal, on the question
of "contributor:' was wrong. If that is so found, then, subject to the matters referred to in the
contention, we are entitled to succeed. Question 4(b)of the submissions merely refers to the argument
based on the 1976 amendments which is raised by the
contention but I do not need to address that in-chief,
may it please the Court.
(Continued on page 35)
C2T21/2/SH 34 2/3/89 Chopra(2) MASON CJ: Thank you, Mr Bennett. Yes, Mr Handley.
MR HANDLEY: Your Honours, while ATHANASIOU's case is handy, could I point out that, in fact,
contributions were made in that case. At page 208, it is the paragraph immediately above
the words in caps in the president's judgment,
"The issue for determination", and one sees,
that:
On 15 September 1983, in accordance with
this determination, the Board refunded the
sum of $2,744.62 to the deceased, being
the sum that had been deducted by his
employer from his salary.
So that that case did not, in any way, touch
the question in the present case where the problems
arise because no such contributions were evermade and, in our submission, the dicta or the
statements in the Court of Appeal are just not
directed, in any way, to the present question.
Again, while that judgment is before the Court, could I draw attention to the passage
in Mr Justice Priestley's judgment at page 218,
in the third-last paragraph, it is the last
sentence in that paragraph:The result would then be that a person who had done everything he could do to comply
with his statutory obligations - one cannot say that that language reads very
well in the case of Mrs Chopra -
would cease to be a contributor solely
because - and certainly Mrs Chopra did not - her failure
to become a contributor, in fact, did not flow
solely from any breach of statutory duty on the part of the University.
Could I hand up our outline, Your Honours.
MASON CJ: Thank you, Mr Handley. MR HANDLEY:
Your Honours, there are one or two sections that my friend did not reproduce in his copy
of the statute. We have produced a legislative folder for the Court which contains far more than is needed but I would like to hand it up now just to take the Court to one or two sections in the 1976 consolidation which have not been referred to and these are relevant to the matter that Mr Justice Brennan discussed with my learned friend about the significance of section 27 of the Act. C2T22/l/ND 35/36 Chopra(2)
MASON CJ: Yes, Mr Handley. MR HANDLEY: If Your Honours please, paragraph 3 of our outline draws attention to section 27 of the Act
and that is not a recent invention because the
same point was put squarely to the primary judge
as appears from page 81 of the appeal book and
although it is not mentioned in the reasons for
judgment of the Court of Appeal, Your Honours can
be sure that the section was mentioned. Page 81, line 10: Senior counsel for the University,
supported by senior counsel for the Board,argued that, in any event, the plaintiff
was not entitled to receive a pension on
retirement because, within the meaning of
section 27(1), she had not contributed to
any units at the time of or prior to her
retirement -
and His Honour goes on to answer question 2 in the
negative. Now, Your Honours, to get an overview of the scheme of the Act we would seek to take Your Honours to all the contribution sections. We only need to do so for a few lines but, in
relation to Your Honour's legislation book, they
start at page 13 of the statute and page 13 of the
machine-numbered book. All I need refer to is the
opening two lines of section 11(1):
Every employee shall (except as elsewhere
in this Act provided) contribute to the Fund -
and I need not trouble Your Honours with the rest of
the section or the detail. Section 12 is at page 21 of the statute and page 21 of the book:
Scale of units.
of units of pension as defined in section (1) Such contributitons shall be in respect
twenty-six; and the number of such units shall vary in relation to salary in accordance with the following scale -
and then the heading above the right-hand column - The employee shall contribute the amount
necessary to provide units of pension as
under -
Then employer's contributions are covered by
section 16 which appears at page 53 and it is only
necessary to draw Your Honours' attention to the
first couple of lines of section 16:
C2T23/l/HS 37 2/3/89 Chopra(2) Each employer shall contribute to the Fund
regular payments at prescribed periods in
respect of each contributor -
Then section 19 at page 57 - section 19(1) deals with contributors who are on leave of absence.
Subs~c~ion (2) is, we would submit, a general prov1s1on:
Any contribution unpaid on the due
date shall bear interest .....
(3) The Board may recover the amount of
any contribution due and unpaid together
with interest thereon in any court of
competent jurisdiction.
(Continued on page 39)
C2T23 /1 /HS 38 2/3/89 Chopra(2)
MR HANDLEY (continuing): Then the deduction section is section 20:
The contributions of contributors shall be
deducted by employers from the salaries
of such contributors at each payment of such
salaries, and shall, together with the
employers' contributions, be paid without
deduction ..... to the Board.
BRENNAN J: Then is the contribution made when the deduction is made?
MR HANDLEY: The contribution is literally made when the deduction is made but a person is contributing, in our submission,
from the moment that wages or salary are accruing
which will be subject to deduction when they are paid.
BRENNAN J: It will be subject to the deduction under the Act.
MR HANDLEY: Yes, Your Honour. One has -under the Act at all relevant times an employee could not become a
contributor until he or she had passed a
prescribed medical examination. Upon the prescribed medical examination being satisfactorily held,
then the obligation to make contributions attached
both to the employer and the employee and contributions
had to cormnence. Sometimes, of course, the medical examination would precede the cormnencement of
employment; other times, for example, as in
ATHANASIOU's case, the medical examination would
post-date employment. But once the condition precedent of a satisfactory medical had been completed or
satisfied, then the obligation was to cormnence to
make contributions in respect of that employee
and once a pay period cormnenced, which was going to
be the subject of deduction at the end of that
pay period, so that the employee would receive a
salary or wages diminished not only by income tax
deductions but also by superannuation deductions,
then that person, in our submission, is a person who is contributing. I mean, if he died - - -
BRENNAN J: Well, you have added there the proposition "and
would be subject to deduction." In other words,.
it is not simply the imposition of the obligation
under the statute but the factual likelihood of
deduction.
MR HANDLEY: Indeed. It is the fact that arrangements are in hand and because of the medical and the like, the
employee knows that his or her salary at the end
of weekly, fortnightly or monthly period, will bediminished by the amount of the superannuation.
If that employee were to be dismissed, were to die
before that pay period arrived, the amount of wages
which would have been earned up to the date of death,
C2T24/l/VH 39 2/3/89 Chopra(2) dismissal or resignation, would be diminished by
the superannuation contribution just like it would
be diminished by the tax. So, in a sense, in a sufficient sense, the employee would be contributing
in advance of the actual first contribution being
made, we submit.
Now, the Court has. had its attention drawn to
section 27 which we do not reread, of course.
(Continued on page 41)
C2T24/l/VH 40 2/3/89 Chopra(2) MR HANDLEY (continuing): There are similar provisions dealing
with pensions to which brief reference may be made.
They are in the same condition as section 27.
At page 67, section 28:
On the retirement at or after the age of
fifty-five years of a woman who has
contributed for a pension payable on
reaching the said age, the full pension
for which she has so contributed shall
be payable.
Section 28A is to the same effect and I need not
pause to look at that. Then, the widows' pension
is section 30 on page 74:
On the death of a contributor not being a contributor for limited benefits before retirement, pension shall be paid to his
widow as follows:-
(a) the pension for which her husband was
During her own life, five-eighths of death.
TOOHEY J: Mr Handley, to what extent are the amount of units for which an employee may contribute related to
age, length of service - well, not length of service,
I suppose - but is it purely voluntary or is it
according to some sort of formula?
MR HANDLEY: Your Honour, it is based literally on salary and Your Honours may remember that Mrs Chopra, who
commenced employment with the University of Newcastle
quite on in her employment career, had to suffer if she,
in the absence of an exemption or some other special
arrangements, would have been contributing very
substantial parts of her salary in order to satisfy
the ordinarily compulsory units. And so, she had to, as it were, pay for her units in double quick time.
TOOHEY J: But is an employee free to top up units? MR HANDLEY: Yes, Your Honour, there are rights to top up units. Sorry, that is perhaps an over-simplification.
Every time there is a salary or wage increase an
obligation to take up further units accrues u11der the
Act.
TOOHEY J: Yes. That was not quite what I meant. In other words, could you say of any employee at any
time what amount was required to be deducted both
from salary and what contribution was required to be
made by the employer?
C2T25/l/JH 41 2/3/89 Chopra(2)
MR HANDLEY: Your Honour, the answer to that is, yes. It becomes quite complicated, in fact, because, for
example, an employee who did not pass the medical
examination can still contribute for limited benefits
outside the table rates and there are a host of
elections in the statute which enables people to elect up or elect down for particular numbers of
units. But there were statutory minima for persons who were of good health and male and below a
certain age. They could not elect below a certain number. I am afraid it is very complex and most of this
Act is taken up with some of the minutia of these
elections.
TOOHEY J: Yes, I was not concerned with the details so much,
but the broad principle that applied.
MR HANDLEY: The broad principle is clear. Section 14 contains the broad principle, as I am reminded -
page 42 of the book; it is page 44 of the print.
Section 14 lays down the general scheme, Your Honour.
Your Honours, the case that Mrs Chopra brought before
the supreme court in the first instance was a case
that she had been a contributor at all material timessince her appointment and that appears in the first
declaration that she sought in the summons at
page 1 of the appeal book.
(Continued on page 43)
C2T25/2/JH 42 2/3/89 Chopra(2)
MR HANDLEY (continuing): The other declarations, 2 and 3, were declarations that at all material times certain
state of affairs existed. That is the declaration which the Court of Appeal has made, as can be seen
from page 122 paragraph (1):
A declaration that the Plaintiff was, from the
time of her permanent appointment as a
Lecturer in the Department of Education in the employ of the First Defendant -
the University of Newcastle -
about February 1970, a contributor.
That claim, both made and allowed, necessarily
focuses attention on the Act in force at the time she became a contributor. The Court will be aware
that there were a series of issues reduced to writing and agreed upon by the parties and put
before the primary judge at pages 68 and 69.
I will perhaps just take Your Honours quickly to
the more material ones of these. Issue 1, at the
bottom of page 68,was whether the plaintiff became
a contributor by virtue of her employment:
which commenced in February 1970 ..... within
the meaning of the Superannuation Act 1916,
as that Act stood before the amendments .....
of 1976.
Issue 2 is:
Whether ..... the plaintiff became a contributor
within the meaning of the Act as so amendedon or after 13 January 1977.
Issue 5:
Whether the plaintiff is now barred from
becoming a contributor ..... by reason of the amendments by Act No. 147 of 1985.
That is, the(SCHEME CLOSURE)ACT. It should be 47
actually, that is a typographical error, thank you.
And 6:
Whether the plaintiff is now barred from
commencing to contribute by reason of the
amendments made by Act No. 155.
Mr Justice Yeldham found for the defendants on all
of those issues. The Court of Appeal found for Mrs Chopra on the first of those issues and did not have consider, or thought they did not have
to consider issues 2, 5 and 6. The position there
C2T26/l/MB 43 2/3/89 Chopra(2) is that on issues 2, 5 and 6 the appellants have
findings in their favour by the trial judge which
have not, as separate issues, being displaced by
the reasoning of the Court of Appeal, although,
of course, their legal foundation has been cut away by the reversal by the Court of Appeal of a finding
on the first issue.
TOOHEY J: Question 1 may not have been entirely satisfactory unless you read "by reason of her employment" as
involving also the operation of the Act; perhaps you do.
MR HANDLEY: Well, I do not think it was ever intended to do otherwiset Your Honour.
TOOHEY J: Not simply the fact of her employment but the fact of her employment and the operation of the
Act upon that employment, is it not?
MR HANDLEY: That certainly was the intention, I believe, of all parties, Your Honour. If I can perhaps say
it is the fact of the employment - the only evidentiary
fact is the employment and the medical examination
and the conrrnencement of duties, the rest is the law,namely, the statute as it stood. I do not think -
no one was finnessing on any fine point about just
what was covered by "employment".
(Continued on page 45)
C2T26/2/MB 44 2/3/89 Chopra(2)
TOOHEY J: No, I was thinking more that it perhaps does not bring out the point that may be argued that the
scheme of the Act and the obligation of the
employer to deduct and to make contributions coupled
with the fact of employment may have entitled the
plaintiff to - or may have qualified who is a
contributor, notwithstanding that she opted to
stand away from the scheme.
MR HANDLEY: Your Honour, that was certainly argued before Mr Justice Yeldham and I say the parties did not really intend that language, I do not believe, to
be given any sort of a super-technical, if I can
put it that way, construction. The issue reallytendered was, in the events that have happened
did she become an employee, did she become a contributor prior to the commencement of the
1976 amendments on the true construction of the Act
and in the events that have happened? That is the
sense of it. We do not take any narrow point based on the precise language of question 1.
Your Honours, I have to say something about
the question of statutory duty which loomed large
in the Court of Appeal and has loomed large here
in the discussion that has already taken place. As to that, our submission is encapsulated in paragraph 5
of our outline - there is no need to gloss theplain words of the definition to avoid loss to an
employee whose employer failed to make contributions.
If the employer breached its clear statutory duty
to deduct and forward contributions and that breach
caused the employee to suffer loss.
There is a question in this case as to whether
the breach caused any loss to Mrs Chopra because
an inference is open that if the University had put
the matter to the test and had commenced to make
deductions from Mrs Chopra's salary at the rate thatshe regarded as quite unacceptable, she may well have
signed the exemption papers and become exempt. So if she had sued for damages for breach of statutory duty there would be a question of the causation as to
whether she could prove that she suffered the loss
of superannuation benefits as a result of the
employer's breach of duty. I do not deny the existence of the breach of duty but there is a question, we
submit, of causation which, of course, has never been
tried.
Then the employee has a cause of action sounding
in damages against the employer. The Court, of course, will be familiar with the general statutory causes of
action for damages for breach of statutory duty arising
from a breach by employers of safety precautions
enjoined by statute for the protection of employees.
MALLINSON's case is a different case, nevertheless one
C2T27/l/BR 45 2/3/89 Chopra(2) where statutory duty was recognized by this Court.
I do not think I need take the Court to the passage
although this Court did cite a well-known Court of
Appeal decision in GROVES V LORD WTMBORNE which
dealt with statutory obligations for the benefit
of employees, but it was applied in MALLINSON's case
to the statutory duty under the CONCILIATION AND
ARBITRATION ACT on employers to pay award wages.
And in the Act, as it then stood, there was no
expressed statutory obligation to pay award wages
and the court found such a statutory duty to be
implied on the same principle giving rise to a
right, a corresponding civil right in the employee
by applying and extending the GROVES V LORD WIMBORNE
analysis.
(Continued on page 47)
C2T27/2/BR 46 2/3/89 Chopra(2) MR HANDLEY (continuing): In INLAND REVENUE COMMISSIONERS V
GOLDBLATT, there is a decision of Mr Justice Goff
- the Equity Mr Justice Goff. He held, following
a line of English authority going back to the first
decade of the century, that the statutory duties
placed by the companies' legislation on private
receivers to make preferential payments for wages,
income tax, rates and the like gave rise to a
statutory cause of action for breach in favour of
a preferential creditor who was not paid when an
effective obligation was imposed on the receiver
and he had the assets to perform that obligation.
So that it is not drawing a long bow by any means;
in fact, it is well within existing principle and
authority to say that a breach by an employer of
statutory duty under the SUPERANNUATION ACT would
give rise to a statutory cause of action in the
employee but the employee would have to show that
he or she had suffered loss by reason of the breach
of duty. That, of course, would bring the real
questions, in this case, into the open but it also
would raise questions of limitation.
Where the cause of action was concealed by the
employer, deliberately or arguably negligently, from
the employee, there would be a very prima facie - the time would not run against the employee. The effect
of that, Your Honours, in our submission is that there
is no need for the Court to depart from the plain ordinary language of the statute in order to givea remedy to an employee who has missed out on his
or her superannuation and solely because of a breach
of duty by his or her employer and, similarly, there
is no reason for the Court to adopt a constructionof this language by analogy to the old equitable
rule that the statute deems that to be done, which
ought to have been done. In our submission, there
is no general principle that a statutory duty is
taken to have been performed contrary to the fact
so that rights accrue, not on the basis of breach
of duty but on the basis of a deemed performance of that duty, contrary to the fact.
Now, if I may go to the judgment in the Court
of Appeal to add a few brief matters to what fell
from my learned friend, Mr Bennett. Your Honours,
at the bottom of page 110, Mr Justice Mahoney refers
to FISHER V FORD. That case has already been referred to but, iIIm1ediately above it, Mr Justice Mahoney has
misquoted from the Stroud dictionary on the meaningof "is" of all things. His Honour says that: "Is" is an active participle -
C2T28/l/SH 47 2/3/89 Chopra(2) Well, my knowledge of grarmnar is somewhat
attenuated by time but it is clear, in my
submission, that "is" is not an active
participle. The word "contributing" in the phrase in the statute is the active participle and, from
Stroud one sees~ under the meaning of the word
"is":
"Is" with an active participle, generally
connotes present time.
And a reference to FISHER V FORD. Well, there is
a reference to "proceeding" and then a reference to
FISHER V FORD. It may be that the Court does not wish to pursue this particular point but as my friend,
Mr Bennett, has point out, FISHER V FORD is not
authority for the proposition for which it is quoted
by Mr Justice Mahoney nor does one find any statement
in FISHER V FORD for which it is cited by Stroud.
FISHER V FORD is authority for the proposition
that "is" means "is".
(Continued on page 49)
C2T28/2/SH 48 2/3/89 Chopra(2) MASON CJ: It does not seem to carry the case forward very
far, Mr Handley.
MR HANDLEY:
No, Your Honour, but it may carry the Court of Appeal judgment backwards.
Your Honours,
at page 111, a submission is attributed to my
learned friend,Mr Bennet~ and myself at about
line 17 which we did not make in that form -
Mr Justice Mahoney 1 s words are to be taken at least we did not make it in that form if actually literally: "is contributing" as requiring that the
emp~oyee be at the relevant time actually
paying money.
If by that His Honour is attributing to us that
it is only at the instant of time that a
contribution is being deducted or paid at the
moment the pay-packet is handed over, minus
the deduction, no such submission was ever made
by us and it would involve a grotesque construction
of this statute. In fact, Your Honours, our
submission is encapsulated at the top of page 112:
a person by or for whom payments were habitually made would not cease to be
contributing, in the relevant sense, because,
during a particular period -
for example, between pay-days no payments were
made.
And Your Honours, by way of contrast, at
the bottom of page 111, His Honours says, three
lines from the bottom:
Thus, it may properly be said that a person
"is contributing to the support of her family" -
or his family - even though, at a particular time or during a particular period, she may not actually have made a payment to or for them. The payments might be made weekly, quarterly,
monthly, or whatever, and although the actual
payments are made at intervals, nevertheless,
throughout the period covered by those intervals,
the person would be said to be supporting hisor her family and, here, likewise, could be
said to be making a contributing, or contributing.
on KERSHAW 1 s case, if I may, 6 Ellis & Blackburn. I would like, Your Honours, to spend a moment
C2T2 9 /1 /ND 49 2/3/89 Chopra(2) We have given, I think, a reference to the
nominate report rather than to the English Reprint.
Mr Bennett gave both, apparently. At the bottom of page 1002 of the old report, at the end of the summary of the case - that is, the stated case - five lines up:
the question of law, intended to be put
to this Court, was whether persons liable
to be rated but not actually rated wereentitled to vote.
And the statutory provisions appear most clearly
in the argument of counsel in support of the
judgment below. At the top of page 1003, 1 ine 1: "the inhabitants of every parish maintaining
its own highways, at their first meeting
in vestry for the nomination of overseers
of the poor in every year, shall proceed
to the election" of surveyors. "Provided
always, that in any parish where there is
no meeting in the year for the nomination
of overseers of the poor, the inhabitants
contributing to the highway rate shall meet" -
the judgments drew attention to the fact that
the class of voters eligible in the second instance,
under the proviso, would be expected to be the
same as the class of voters eligible for votingif the election took place at the same time
as the overseers of the poor were elected.
Then, in counsel's argument which was taken
up by the court, just above JEFFREY's case: The general policy is to give the franchise to those liable to contribute.
And then, referring to section 5 of the same
Act, this:
and, amongst others, to' inhabitant," which gives an extended meanin8 to several words, shall be understood "to include -
so it is an inclusive definition not an exhaustive
definition -
any person rated to the highway rate."
It left entirely at large the question of the
ordinary meaning of the word "inhabitant" and
this taken up by the Lord Chief Justice.Mr Justice Erle made a comment at the top of
page 1004, line 4:
C2T29/2/ND 50 2/3/89 Chopra(2) That construction would not seem to exclude
those who, being rated, have paid their
rates; they are not contributing, though they have contributed.
A fairly devastating comment. The Lord Chief Justice says, about two-thirds of the way down his judgment:
What would 11 inhabitant 11 mean, when so used,
if this sentence stood alone? Hirn who has
property in respect of which he is liable
to be assessed to contribute to highways.
The inhabitant of a parish, in reference
to a parochial tax, is the person having
property in respect of which he is liable
to that tax. When we look on further thisconstruction is strengthened. It can hardly
be supposed that when there is no such meeting
the election is to be by a different class
of voters.
Your Honours, I will not pursue the rest of
that report.
(Continuing on page 52)
C2T29/3/ND 51 2/3/89 Chopra(2)
MR HANDLEY (continuing): Your Honours, if authority is needed to buttress the Court of Appeal construction,
KERSHAW's case cannot provide that authority, in our submission.
Going to page 115, at the top of the page - and Mr Bennett has already made this point and we
only make it again - that this confuses statutory
rights flowing from a statutory duty on the one hand,and statutory entitlements flowing from performance
of that statutory duty on the other. A statutory duty may be performed, statutory entitlements
accrue; statutory duty is not performed, rights attached by reason of that breach of duty, but
it does not, or you cannot and should not
equiparate statutory entitlements with the rights
flowing from a breach of statutory duty.
Your Honours, Mr Justice Yeldham - and we
would respectfully adopt this view of the case -
dealt with the argument that Mrs Chopra was a
contributor between 1970 and 1977 in three lines
at the bottom of page 74 and the top of page 75.
His Honour said:
The words in the definition are clear,
and it is impossible to read them
in the fashion suggested on behalf
of the plaintiff without doing
violence to the language.
Your Honours, we would respectfully submit, as we
submitted on the leave application, that it is
only the principle that Lord Atkin respectfully
ridiculed in LIVERSIDGE V ANDERSON based on thelanguage of Alice in Wonderland, which appears
at page - I will not read it. It is well known -
"words mean exactly what I want them to mean";
that is at (1942) AC 245.
Just to, as it were, complete that picture,
in ROSSMINSTER's case about the Inland Revenue raid, two members of the House of Lords said that
Lord Atkin was right and the majority were wrong
and the majority decision should be given an
indecent burial. That is at (1980) AC 1011 in the speech of Lord Diplock and at page 1025 in
the speech of Lord Scarman.
Your Honours, going on to deal with the later
points, I merely wish to take Your Honours to
Mr Justice Yeldham's judgment at page 80 where
he held that Mrs Chopra did not become an
employee as a result of the amendments in 1977.
At the bottom of page 80, line 23:
C2T30/l/HS 52/53 2/3/89 Chopra(2) MR HANDLEY (continuing):
In my opinion the plaintiff did not become
a "contributor" as a result of the introduction
of the new definition in s.3 on 13 January 1977.The definition expressly does not include
"an employee while rejected or not accepted as
a contributor" under the Act as it stood before the relevant amendment. Although the plaintiff
had not been rejected, it is plain that she was
not "accepted." I do not regard the conceptof non-acceptance as involving an application
which is refused. This would be a rejection.
Whatever the reason may have been, the plaintiff
was "not accepted as a contributor" under the
SUPERANNUATION ACT as in force before
13 January 1977.
Now, Your Honours that definition carried through
unchanged in any relevant way up until the scheme
closing legislation. So if the plaintiff was a person who was not accepted as a contributor under
the Act in force prior to 13 January 1977, nothing
that happened afterwards made her a contributorwithin the new definition.
Then going to the scheme closing legislation,
we do not need to add very much to what my learned
friend, Mr Bennett, said with reference to the legislation that
he handed up. Mr Justice Yeldham, as we summarize in paragraph 10: if Mrs Chopra was not a contributor
before Act Number 47 of 1985 came into effect, as
argued above, the provisions of 1A(2) on page 22
of Mr Bennett's legislative material, Mrs Chopra
was an employee but was not a contributor immediately
before the prescribed day. This argument was
accepted by Mr Justice Yeldham at page 84. I do not read that passage tQ the Court. Then going to the second of the closing Acts, the relevant material
is at page 27 and following of Mr Bennett's
legislative material; lA(l), which has already been read: A person is not required or entitled to
commence contributing to the Fund on or
after 1 July.
Subsection (3):
Subsection (1) does not apply to -
(a) a person who was, immediately before
1 July 1985, an employee but was not contributing
to the Fund, being a person to whom Schedule XXI
applies and who elects to become a contributorto the Fund in accordance with that Schedule.
C2T31/l/VH 54 2/3/89 Chopra(2) We wish to add one or two points to what Mr Bennett said about the schedule. Again, clause l(l)(a) of
that schedule on page 28:
This Schedule applies to a person -
(a) who was, immediately before 1 July 1985,
an employee but was not contributing to the
Fund.
Going down to 2(1):
A person to whom this Schedule applies may
elect to contribute.
It is our submission that there was no election
by Mrs Chopra. She had issued her summons prior to the cut-off date but the summons itself did not
claim any such election. It merely claimed an
entitlement dating back to February 1970.
(Continued on page 56)
C2T31/2/VH 55 2/3/89 Chopra(2) MR HANDLEY (continuing): There is also no notification, irr
our submission, either within 2(l)(a):
before 1 July 1985, the employer of the
person has notified the Board that theperson is an employee; or
(b) on or before 31 December 1985 - (i) the employer of the person notifies the
Board that the person is an employee; or
(ii) the person lodges at the office of the
Board a certificate signed by or on behalf
of his or her employer stating that the
person is an employee.
Now, there was no notification either under (a)
or under (b)(i) or a certificate under (b) (ii).
A method by which an election is made is covered
by subclause (2) at the top of page 29. I do not think this has been read to the Court yet. Where, within the period of 28 days after a
person to whom this Schedule applies is
given notice by the Board that the employer
of the person has notified the Board that the
person is an employee, the person does not
make an election referred to in subclause (1)
or apply to the Board to be excluded .....
then that person shall be deemed to have - made a particular election. But in this case the
Board gave no such notification to Mrs Chopra.
She made no express election and what would trigger
a deemed election did not take place. Now, Mr Justice Yeldham accepted these arguments at
pages 87 and 88, and I just want to spend a moment
on them if I may. Commencing at line 18: So far as the requirement of an election
within clause (2) of Schedule XX.I is
concerned, it is necessary for the plaintiff to establish that on or before 31st December, 1985
the University had notified the Board that she
was an employee, or else that she had lodged
at the Board's office a certificate .. ; ..
Reliance was placed by the plaintiff, first of
all, upon a letter dated 22nd March, 1985 from
the Board to the University, which referred
to representations made on behalf of the
plaintiff "an employee of your University"
by the Staff Association. To that letter the University replied on 29th March saying
"We have received your letter ..... regarding
a member of the University's staff" and
pointing out that legal advice was being sought.
I do not regard this correspondence as
C2T32/l/MB 56 2/3/89 Chopra(2) constituting any "notification" within the
meaning of Schedule XXI. The notification
must be a deliberate and intentional one
made for the purpose and pursuant to the
provisions of clause 2 of Schedule XXI, and
a casual reference in the course of correspondence
to a person being an employee is in my viewnot sufficient.
In any event, Your Honours, that was a letter from
the board to the University and what schedule XXI
clause (2) requires is a notification by the
employer to the Board before 1 July 1985, which
did not happen. Then, going to the second
matter - - -
BRENNAN J: How do you mean it did not happen, was the reply within the prescribed time?
MR HANDLEY: There is nothing wrong with the reply being in the prescribed time, Your Honour, but:
"We have received your letter of 22 March ...
regarding a member of the University staff"and pointing out that legal avice was being
sought.
BRENNAN J: But if the Board was to say to the University, "Is Mrs Chopra an employee?" and the University
replied, "Yes", you say that would not be a
notification?
(Continued on page 58)
C2T32/2/MB 57 2/3/89 Chopra(2)
MR HANDLEY: That is so, Your Honour. BRENNAN J: It depends who uses the words"including the name of the employee':
MR HANDLEY: Well, Your Honour, apart from the point that Mr Justice Yeldham took that what is being referred
to here is a notification, not knowledge -
notification means, in our submission, an act which
is intended to convey information for a particular
purpose, not information that you pick upaccidentally or casually in the course of discussing
other matters. And here, we submit, there was no notification from the Board to the University
within the language of 2(l)(a).
Going to the second matter, line 8:
The second matter upon which reliance was
placed was a letter written by the University's
solicitors to the solicitor for the Board on
19 December 1985, i.e. after the issue of the
summons and whilst the present litigation was
pending, in which reference was made to a
conference between the solicitors, where
and this "included all correspondence
copies of the personnel file held by the provided,
between the University and Mrs Chopra concerning
the terms of her appointment as a lecturer in
the Department of Education, including a letter
from the Vice-Chancellor to Mrs Chopra dated
24 October 1969". That letter was the initial
letter of appointment -
The letter is actually at page 43, Your Honours.
I need not take Your Honours to it, the summary is
sufficient.
In my view this correspondence, occurring as
it did in the course of and for the purposes
be used to satisfy the terms of Schedule XXI. of litigation, is not sufficient and cannot But in any event, as I have already held, the plaintiff is not a person who would, but for s.lA as inserted by Act No 155 of 1985, "be required or entitled, subject to the provisions of this Act, to contribute to the Fund".
That is because she was not a contributor at the
start of the 1976 legislation and that legislation
did not make her a contributor. And, although
His Honour does not mention it, apart from the issue
of the summons itself, there is no evidence of any
election under the terms of schedule XXI and there
C2T33/l/JH 58 2/3/89 Chopra(2) is no evidence of any notification to retract
clause 2(2) of that schedule. Now, Your Honours, the general principle is that later legislation
cannot be looked at in order to alter the plain and
unambiguous meaning of the earlier legislation, even
though it is to be construed as one with that earlier
legislation. But if the earlier legislation is ambiguous, there is well-established authority that
you can look at later legislation in the same statute
in order to see what construction the legislature has
put on the earlier ambiguous provisions and the
Court will generally accept the legislative
construction put by later legislation on earlier
ambiguous legislation in part of the same body of
legislation.
Now, the authority for that, Your Honours,
well there is much authority for that, but if I could
hand up as one means of putting this material before
Your Honours, an extract from the judgment of the
English Court of Appeal in an income tax case.
Going to the judgment of Lord Evershed at page 687
at the bottom of the page:
(Continued on page 60)
C2T33/2/JH 59 2/3/89 Chopra(2) MR HANDLEY (continuing): In INLAND REVENUE COMMISSIONERS V GULL
Lawrence J. held that the trust in question .....
was nevertheless "established" in the United
Kingdom and therefore within the scope of
section 37 of the INCOME TAX ACT, 1918. But that judge held ..... that the privilege of exemption conferred by the section could not
be enjoyed by any body of persons established
outside the United Kingdom.
And he had relied upon subsequent legislation
referring to this exemption in order to reach that
result.
It does not, however, appear that ORMOND
INVESTMENT CO LTD V BETTS was cited to the
judge. The speeches of the noble Lords in
that case - and the speeches in the later
case before the House of INLAND REVENUE
COMMISSIONERS V DOWDALL O'MAHONEY & CO LTD -
must be taken to have established clearly that
an expression, explicit or implicit, by
Parliament in a later Act of its intention in
an earlier statute cannot be treated as
altering, ex post facto, the effect of the
earlier enactment according to the proper
interpretation of the language therein used.
I pass over the quotation from Lord Buckmaster.
Going to the bottom of the page:
In so far, therefore, as Lawrence J.
expressed the view that the· terms of section 21
of the FINANCE ACT, 1923, section 32 of the
FINANCE ACT, 1924, and section 21 of the
FINANCE ACT, 1925, effectively gave,
retrospectively, an interpretation to the
material terms of section 37 of the INCOME TAX ACT, 1918, which those terms would not otherwise bear, his reasoning would be in conflict with the decisions of the House of Lords to which I have referred. If I am right in the view which I have formed of the proper meaning of section 37 of the Act of 1918, it is unnecessary to pay any regard to the later statutes, and the point does not, therefore, arise. But if I am wrong, then at least, in
my judgment, the construction which I prefer is fairly open as an alternative to that for
which -
the taxpayer -
has contended.
C2T34/l/SH 60 2/3/89 Chopra(2) And, in that event, it is equally clear,
on the authority of the same cases, that
the court will tend to adopt the construction
which is in conformity with that inherent in
the later legislation in pari materia -particularly where the later enactments are
to be read as one with the original Act.
So much clearly appears from the passage
I have quoted from Lord Buckmaster's speech -
Now, Your Honours, in the 1976-77 legislation and
in the 1985 legislation there are statements which
indicate that a person who was an employee and who,
therefore, was a contributor under the 1977 definition,
may not, in fact, be making contributions and may not,
therefore, be a contributor and in so far as there is
ambiguity in the earlier legislation pre-dating the
1976 amendments and in the 1976 amendments themselves,
that ambiguity, in our submission, is resolved by the
legislative construction inherent in the 1985
legislation and also inherent in the 1976 legislationitself because of the definition that a person who
was rejected or not accepted as a contributor was
not, thereby, automatically a contributor prior to
January 1977-merely because of the duty to make a
contribution which the earlier legislation in force
in 1970 imposed on both Mrs Chopra and the University.
So that in a number of places in his judgment, legislation recognized the contrary of the principal
submission made by counsel for the employee. At the bottom of page 81, the last three lines:
This provision recognizes (contrary to the
submissions of senior counsel for the
plaintiff with which I have earlier dealt)
that there may be employees who should have
been but were not contributing prior to the
coming into force of Act No. 101 of 1976.
(Continued on page 62)
C2T34/2/SH 61 2/3/89 Chopra(2) MR HANDLEY (continuing): And then, over on page 84, line 17:
This section also recognizes that there
might be persons who were employees but
not contributors.
And so, Your Honours, in our submission, if there
is ambiguity"contrary to our submissions,in the
legislation in force when Mrs Chopra became an
employee of the University, the Court can look at
the later legislation in order to resolve that
ambiguity and if that happened, the ambiguity wouldbe resolved in favour of the appellants. If the Court
pleases.
MASON CJ: Thank you, Mr Handley. Sir Maurice.
SIR MAURICE: May I just hand up our outline to Your Honours. HA.SON·CJ: Thank you. SIR MAURICE: Could I take Your Honours through it, with respect, so Your Honours will have some notion where our
argument is headed? Now, the first thing we say,Your Honours, is that the first question arising in this appeal is whether the refusal or failure of the
employer to comply with section 16 and 20 - that is
of the Act as exist~d in 1970 - deprived the respondent
of a right to claim benefits under the Act. We say that is the question.
We say the judgment of the Court of Appeal does not result in the respondent obtaining benefits
without making contributions to the fund. The fact that the University did not, in breach of the Act, we say,
make deductions from her salary does not disentitle her
from claiming benefits under section 21 - which enables
her to retire on or after 55 or 60 - section 27 -
which I think Your Honours have been referred to - and
section 29.
Then we say an employee, upon being permanently
employed, is obliged to contribute - that at
section 11(1). Then we say, section llA - that is
the medical inspection - allows the Board subsequently
to annul or set aside that obligation, that is to say,
in those cases in which the medical examination isheld after the employee becomes an employee within the
meaning of the statute. The Board may exempt the employee from section 11(1). Neither the employee nor
the employer. may do so - and we refer to the first
and the third provisos of section 11(1), which I will
take Your Honours to. And the powers given in section 12(1), proviso (d).
We say that section 16 imposes an obligation
on the employer to contribute connnensurate and
C2T35/l/BR 62 2/3/89
Chopra(2) SIR N. BYEKS, QC
equivalent to that of the employee. The fact that the employer breaches its obligations under section 16
or section 20, or both, has no effect on the standingof the employee vis-a-vis the fund. Similarly, the
employee's failure when on leave to ensure
contribution gives the Board a right to sue him for
what the employer otherwise must deduct from
section 20 - that is in section 19 of the Act,
Your Honours, and I will come to that. The employer, however, is not thereby discharged from section 16.
Then we say the Court of Appeal was correct
in holding that the words "who was contributing under this Act" in the definition in section 3 referred to
a person - at least that is one meaning of them - who was under a liability to contribute. We say,
that is made clear by section 19 - which gives the
Board the right to recover payments that have not
been made by the contributor. The obligation to pay is, with the exception of section 19 and certain
exceptional cases, imposed not on the employee, but upon the.employer - so we say "contribute" does
not mean "pay", it means "have deducted". Section
12 indicates the amount. The rights and obligations of employee and employer are found in the positive
provisions of the Act.
(Continued on page 64)
--
C2T35/2/BR 63
SIR M. BYERS, QC 2/3/89
Chopra(2)
SIR MAURICE (continuing): That is really directed, with
respect, Your Honours, to submitting that, really,
the question is what rights the Act confers
or what obligations it imposes, not what the
definition says in the abstract. We say the
definition of "contributor" is not a measureof abstract rights but a provision designed
to work in the positive sections. Its meaning
is ascertainable only in those contexts - I
do not want to take Your Honours to these cases,
but we say that is consistentwith those cases
and it is also consistent with what the Court
of Appeal said in, certainly, two passages in
ATHANASIOU where they repeated the language
that Mr Justice Mahoney said in this case.
of employees and 11 contributors 11 should be given Then we say, the Act is for the benefit the construction accordingly. Then that goes on to the closure provisions and we say Act
No 155 does not operate to defeat our rights
and we say we were not within subsections (1)
or (2) and then we say, in our alternative
submission, that is, if we are wrong under the
Act as it stood up until 1970, we say that as
at the date of the commencement of the 1976
Act the respondent was an employee of the
University of Newcastle.
for the definition of "contributor 11 the following: Schedule 3(2)(b) of that Act substituted "Contributor" means an employee. Certain categories of employees were excluded
from the definition. Section lON of the Act
required every employee to contribute to the
fund in accordance with this Act and
section 10 0(2) specifically referred to non-
contributors under the unamended Act.
This last section shows that persons heretofore
not contributing fell within the amending Act. The only relevant words of exclusion contained in the new definition of 11 contributor 11 were:
an employee while rejected, or not accepted
as a contributor under this Act as in force
at any time before 13 January 1977.
(Continuing on page 65)
C2T36/l/ND 64 SIR M. BYERS, QC 2/3/89 Chopra(2)
SIR MAURICE (continuing): The reference to"l3 January 1977" is the date of the commencement of the 1976 Act
and because the previous_medical examination
provision was then repealed and a new one substituted. And
then we· this paragraph is clearly a reference to
persons rejected or not accepted pursuant to
section llA of the unamended Act and not otherwise.
The paragraph parallels the powers given the Board
by section 11A(2) of the Act up until 1970.
The rest of it deals with the (FURTHER AMENDMENT) ACT and possibly I can come to that later,
Your Honours, and read it to you when I come to deal with that. Now, Your Honours, I am sorry to do this
because you have been deluged with material, but we
have a reprint of the Act certified as at
29 October 1971. We have had photocopies made and since this is the Act that is relevant, would Your Honours
allow me to hand you copies and there are some
provisions in it that I would like to, if I may,
remind Your Honours of or draw to your attention
because not all of them appeared in the apparatus
Your Honours have received to date. With · Your Honours permission, that might be handed up.
Could I just say a word initially, Your Honours,
about two definitions: the definition of
"contributor" and the definition of "employee".
Your Honours, "contributor", of course, says,
relevantly:
An employee who is contributing under this
Act.
An "employee" is defined as meaning:
a person employed by an "employer" -
and that is further defined
who is by the terms of his employment
required to give his whole time
and that does not include various judges. (Continued on page 66)
C2T37/l/JH 65 SIR M.BYERS, QC 2/3/89 Chopra(2)
SIR MAURICE (continuing): If Your Honours would go down to about - Your Honour sees "the University of New
South Wales" which is about three-quarters of the
way through the definition, but it does not include
a judge, and it does not include:
a person who is subject to the
provisions of the RAILWAY SUPERANNUATION
ACT, 1910, or the TRANSPORT EMPLOYEES
RETIREMENT BENEFITS ACT, 1967, or Part III
of the POLICE REGULATION ACT, 1899, or
the POLICE REGULATION (SUPERANNUATION) ACT,
1906, or any Act amending the same -
and then it refers to, in effect, casual workers -
hourly, daily ..... or piece work.
Now, the function of the words "who is contributing
under this Act" clearly enough, when read with the
definition of "employee" is to say, well, we are
talking about contributors to this fund and we have
expressly excluded those who are contributors to
other funds, and so the Act stood when it was first
introduced in 1916. The definition, of course, was not in the same terms because there were Acts
that were added, but substantially it was the same,
and I have photocopies that I can hand up to
Your Honours of the defintion in that Act in 1916.Another factor that is, in our submission,
important is that Your Honour will see that the Act
contains in section 3(1) a definition of the CIVIL
SERVICE ACT. In the matter I have handed up to Your Honours it is at the top of page 5, and
this was in from the beginning:
"CIVIL SERVICE ACTS" include the CIVIL
SERVICE ACT, 1884, the PUBLIC SERVICE ACT,
1902, the PUBLIC SERVICE (SUPERANNUATION)
ACT, 1903, and the PUBLIC SERVICE
(AMENDMENT) ACT, 1912.
Now, what happened to those people, Your Honours, was that they obtained under sections, beginning
at pa g e 115 of the rep r int , sect ion 5 3 , a r i g ht to come into the fund under certain conditions.
For example, section 53 says:
This Act shall not (except as herein
specifically provided) apply to employees
who have the right vested or contingent to either a pension or a gratuity under the CIVIL SERVICE ACTS.
Then it says in section 54(1):
C2T38/l /HS 66 SIR M. BYERS, QC 2/3/89 Chopra(2) Any such employee who -
(a) is under the age of sixty years
when this Act come in -
has certain rights, which are set out 1n paragraph (b) -
may within the prescribed time elect to
come under this Act for the purpose of
the difference.
So the scheme of this Act is that it takes
government employees - I say government employees
because employer means the Government of New South
Wales and other bodies - and it says, "We will give
those who have pension rights under nominated Acts
the right to come in; we will exclude those who are subiect to pension schemes provided by
nominated Acts from the definition of 'employee'
so they do not come in, cannot come in, and when
we define 'contributor' we will say that means
someone who is contributing under this Act.
If Your Honours go to section 4 Your Honours
will see that what goes into the fund are the
contributions of employers and their employees
under this Act. So, one therefore has this Act setting up a scheme and the part of the
definition of "contributor" is to denote those
who fall within the scheme properly construed
and nothing else. In other words, the words
"who is contributing" in the definition of
"contributor" does not necessarily extend to a
person who is physically paying. Indeed, he cannot
physically pay, at any rate so far as the
compulsory obligations.
(Continued on page 68)
C2T38/2/HS 67 SIR M. BYERS, QC 2/3/89 Chopra(2)
SIR MAURICE (continuing): Can I then take Your Honours to section 11; I think Your Honours have read that.
What we say section 11(1) does - it is at page 24
of the reprint that I have handed to Your Honours.
It creates a compulsion on employees of a nominated
class to contribute. I think my learned friend,Mr Bennett, agreed with this view of it, that it
says you are compulsorily obliged to contribute
to the fund:
from such date as the Governor may notify
in the Gazette -
and the somewhat bewildering days that go on,
Your Honours, down there are because there have
been various amendments to the Act from time to
time. I can take Your Honours through those but I think, perhaps, unnecessarily time consuming.
BRENNAN J: What is the content of that obligation, Sir Maurice?
SIR MAURICE: The content of the obligation is to permit a deduction - - -
BRENNAN J: Permit?
SIR MAURICE: Yes. When I say "permit" I mean what it does is oblige the employer to deduct from the wage,
from the salary.
BRENNAN J: But the employer is not mentioned in section 11? SIR MAURICE: No, the employer is not mentioned, that is perfectly correct. But if you go to section 20,
Your Honour - - -
BRENNAN J: Does section 11 create any obligation at all? SIR MAURICE: Well, we would submit it does, Your Honour.
I appreciate one could say, "Well, that is just a way of saying or describing the class who
are contributors", in other words, those who fall
within the ambit of this scheme, that is a statutory scheme so that one says, "Well, one uses ·_1contribute" in a sense, in a broad sort of sense as meaning those who are" - for lack of a better word - "members of the fund."
(Continued on page 69)
C2T39/l/MB 68 SIR M. BYERS, QC 2/3/89 Chopra(2)
SIR MAURICE (continuing: Then the way they contribute under section 20, which, I think Your Honours have been
referred to, which is at page 68, is by way of
obligation on employees to deduct:
from the salaries of such contributors at each payment of such salaries, and shall,
together with the employers' contributions,
be paid without deduction for postage,
forwarding, or exchange, to the Board.
Now, Your Honours, one can say, well, that is used in language of compulsion. That is perhaps the way
one would normally read "shall be deducted by
employers from the salaries." One could say that
this is just another way of describing, as it
were, the fund membership and the means by which
contributions are to be made. In other words, they
are to be made by deduction. Section 19 tends to
support that because it says when you are:
on leave of absence, whether without pay
or not -
or presumably, with your pay being sent to you or
if you have not got any pay you just do not W8rry -
his contributions shall be paid during such
leave of absence as for a period of service
and shall become due on or before the last
day of each month or four-weekly contribution
period.Any contribution unpaid on the due date shall bear interest -
four per cent, and (2) gives the Board a power
of waiver in cases of hardship and (3) says:
The Board may recover the amount of any
contribution due and unpaid ..... with interest .....
in any court of competent jurisdiction. (Continued on page 70)
C2T40/l/VH 69 SIR M. BYERS, QC 2/3/89 Chopra(2)
SIR MAURICE (continuing): So, the notion behind sections 19 and 20, in our respectful submission, is that the
mode of payment is by deduction from the salaries.
In the event of there being leave of absence, the
Board has a direct right to recover and what that
means, of course, is that the contributor cannot
mean a person who has paid but it can mean a personwho has failed to pay, but he is still a contributor.
Now, Your Honours, then, if one goes back to 12
which is at page 32, you come to the question of
how much and they say:
Such contributions -
Now, they are the contributions referred to in 11(1).
There are a lot of exceptions for 11(1) but -
shall be in respect of units of pension as
defined in section twenty-six -
which is $1.25 a week and I will come back to that
in a moment -
and -
(a) with respect to salaries not exceeding
five thousand two hundred dollars, the
number of those units shall vary in relation
to salary in accordance with the following
scale -
and they set down the scale down to 5229 units.
Paragraph (b) says:
(b) with respect to salaries exceeding five
thousand two hundred dollars, the number of
units shall be twenty-nine together with -
(i) an additional unit for every two hundred and sixty dollars -
Well, in the case of Mrs Chopra, she would have been
entitled to 31. I can give Your Honours the reference. She was receiving a corrnnencing salary of $5940. That
is at page 27.
(Continued on page 71)
C2T41/l/SH 70 SIR M. BYERS, QC 2/3/89 Chopra(2)
SIR MAURICE (continuing): So that, she would be entitled, on my computation, to 31 units.
DAWSON J: She was entitled to limited benefits, was she
not, under - - -
SIR MAURICE:
Yes, Your Honour, but strangely enough - what Your Honour put to me is, with respect,
completely correct. There is a provision which
I must take Your Honour to because at first
sight it looks a little baffling. If
Your Honour turns one page back, page 31:
A contributor for limited benefits -does Your Honour see that - llC, at the top -
and the widow and children of such
contributor and any pensioner who immediately
before his reti~ement or retrenchment was
such a contributor and the widow and children
of such pensioner shall except where otherwise
expressly provided or the context otherwise
requires be entitled to the rights and be
subject to the obligations of a contributor
otherwise than for
full benefits, which I take to mean full
contributor -
and a pensioner who immediately before his
retirement or retrenchment was a contributor
otherwise than for limited benefits and
the widow and children of a pensioner who
immediately before his retirement or
retrenchment was a contributor otherwisethan for limited benefits, as the case may -
be.
Your Honour, where the limited benefits
do have a significance, an express significance, is in what they call a "breakdown pension" which is section 29, at page 85, Your Honour. Breakdown pensions.
29.(1) If a contributor who is not a
contributor for limited benefits and hascontributed for at least five years be retired
on the ground of invalidity or physical
or mental incapacity to perform his duties,then -
(a) If such invalidity or incapacity is
in the opinion of the Board not due to his
own fault he shall be entitled to the full
pension for which he has been
contributing ..... ; but
C2T42 /1 /ND 71 SIR M. BYERS, QC 2/3/89 Chopra(2) (b) If such invalidity or incapacity
is in the opinion of the Board due to his
own fault he shall be entitled to such
pension as is determined by the Board
to be the equivalent of the contributor's
rights in the fund or, if the Board so
determines, to refund of a sum equal to
his contributions -
and then it goes on:
(Continuing on page 73)
C2T42/2/ND 72 SIR M. BYERS, QC 2/3/89 Chopra(2)
SIR MAURICE (continuing): And then it goes on:
If a contributor is not a contributor for
limited benefits and has contributed for
less than five years -
and again you have this physical or mental incapacity.
(lB) (a) If a contributor for limited benefits
who has contributed for at least five years
be retired -
then he gets a lump sum and so on. So the Act does make an express provision in relation to limited
benefits ~ it would seem, Your Honours, only in that context. We have been unable to find any other and
it may be that some lurk around, Your Honours, but
they seem to be equated. Your Honours, what we would say firstly is that you look to the notion
of the definition by saying, "Well, really what it
does is identify the contributor with a fund", and that is the point of saying 11who is contributing' and that is the point of the definition of employer. Then the function of section 11 is either
compulsory or to indicate the class of persons who
are to form part of the fund. Then the mode of contribution - that is set out in sections 19 and 20 -
and the employer's contribution is that set out in
section 16 which is hinged to the employee's
contribution. That is at page 63, if Your Honour
pleases. So 16(1), those contributions are to "bein accordance with the tables of contributions".
So one starts, section 12 says number of units.
Succeeding provisions to section 12 accelerate the
number of units according to salary increases.
Section 26 says, as it were, the initial unit and
then section 27 says what the normal pension is.
And section llC equates limited benefits to, what I
will call, full benefits.
MASON CJ: It might be a convenient time to adjourn, Sir Maurice.
SIR MAURICE: Yes, Your Honour. MASON CJ: Court will adjourn now and resume at 2 o'clock. AT 12.47 PM LUNCHEeN ADJOURNMENT
C2T43/l/BR 73 SIR M. BYERS, QC 2/3/89 Chopra(2) UPON RESUMING AT 2.00 PM:
MASON CJ: Yes, Sir Maurice.
SIR MAURICE: If the Court pleases. May I just add to something
I said to Your Honour Mr Justice Dawson. I referred. to section 29 in relation to "limited benefits".
There is another reference which I forgot to give
Your Honour, section 30(2). It has no intrinsic interest,
Your Honour, but I thought I should indicate to
Your Honours - page 92 of the print. I think Your Honour mentioned something to the effect that - perhaps
I have misunderstood Your Honour - Mrs Chopra had
been accepted for limited benefits. Your Honour,
certainly what happened was that the medical
certificate so suggested that she should be
accepted for permanent employment and limited
benefits but it would seem, under section 11A(2)
at page 30, that the decision as to who shall
accept is the decision of the Board. Your Honours see: Where the report of the Chief Medical
Officer indicates such employee is suffering
from any physical or mental defect which is
likely to affect his health or longevity
or his capacity to continue in his
employment the Board may -
and sets out - - -
DAWSON J: And the Board never did, SIR MAURICE: The Board never did, if Your Honour pleases. Now, Your Honour, may I just go next to deal with
the questions about exemption. What we respectfully submit to Your Honours in our outline is that the
Act is quite explicit about exemption and nothing
occurred in this case that exempted Mrs Chopra from
the obligations under section 11(1). (Continued on page 75)
C2T44/l/MB 74 SIR M. BYERS, QC 2/3/89 Chopra(2) SIR MAURICE (continuing): And the sections I would wish
to refer Your Honours to are section 11(1),
it is the first proviso at page 24. If
Your Honours look to the bottom of the page
Your Honours will see the proviso beginning:
Provided also that where the wife of
an employee is also an employee the Board
may on her application -
and then, if Your Honours will find the rest
of the verb, about five lines from the top of
page 25 -
reduce the number of units in respect of
which she shall contribute or exempt her
from contributing under this Act.
So, again, it is the decision of theBoard.
The remainder of that first proviso on page 25 -
it says:
Any unit or units in excess of the reduced
number
following the Board's decision for a reduction
are to be deemed to be abandoned. And then, if one goes down to the bottom of the page 25,
one sees a further proviso which was also
applicable here:
Provided further that the Board may,
on application as hereinafter provided,
exempt from contributing to the fund -
(a) any person of or above the age of forty
years who, after the commencement of the
SUPEMNNUATION (ANENDMENT) ACT, 1948 -
(i) enters the service of an employer as
an employee -
and then it goes on to illustrate others - (b) any person of or above the age of forty
years who entered the service of an employer
within. the period of three months immediately
before .....(c) any person of or above the age of fifty -
C2T45/l/ND 75 SIR M. BYERS, QC 2/3/89 Chopra(2)
SIR MAURICE (continuing): Now the evidence here, Your Honour, is that Mrs Chopra was born in October 1920,
Your Honou~the only point of this is to show that
the last paragraph was applicable to her.
TOOHEY J: Is that not common ground, Sir Maurice, that - - - SIR MAURICE: I think it is common ground that she was born in 1920, yes, Your Honour, and - - -
TOOHEY J: My proposition was a broader one. SIR MAURICE: I beg Your Honour's pardon. TOOHEY J: Is it not common ground that she did not fall within any of the exemptions?
SIR MAURICE: She could have obtained an exemption but did not. It is common ground that she was not exempted. It is, I think, common ground that she could have obtained an
exemption had she known of it. It is common ground
that she did not know of it and it is common ground that
the reason why - I made a mistake there, Your Honours,
It is common ground that she did not know of the
reduction so she did not know she had the option toapply to reduce her contributions from 50 or 60 per cent,
as she said in the evidence which has been read to
Your Honours, to a minimum of six.
Now, Your Honours, I say a minimum of six -
I am sorry, before I go on and give Your Honour the section that deals with a minimum of six - she says,
in her oral evidence, that the reason why she did not
apply was an economic reason because the contribution
would have amounted to 50 to 60 per cent of her
salary and a quarter of the family income, so she
says at page 56, I think it is. But at any rate I can give Your Honours the reference to the page which, I
think, my learned friend, Mr Bennett, read out - 59.
(Continued on page 77)
C2T46/l/JH 76 SIR M. BYERS, QC 2/3/89 Chopra(2)
SIR MAURICE (continuing): What I am referring to, of course, is the evidence in re-examination, not the evidence
in cross-examination, but I think my friend read
that out. Now, Your Honours, the reference to six units - if Your Honours go to section 12, page 32,
I think I have mentioned it to Your Honours already:
Such contributions -
obviously the contributions referred to in section 11(1)
set out the salary and paragraph (b) sets out the
"twenty-nine" and in her case it would be plus
two, which would be thirty-one units and the proviso
says, about the middle of page 33, Your Honours:
if the employee enters the service of his
employer after the commencement of section sevenof the SUPPERANNUATION (AMENDMENT) ACT, 1963,
and at the_ time of so entering such service
is of or over the age of thirty years -
which was the case here -
or if the employee is of or over the age of
thirty years at the date his employer is
added -
well, that does not matter -
the Board may, on his application, reduce to
such number, not being less than six,
the number of units in respect of which he
shall contribute.
So there was a power in the Board on an application of
Mrs Chopra to reduce her contribution from, say,
50 or 60 per cent of her salary down to the equivalent
of six units. That is the fact of which she did not know and which the University did not inform her and hence there was no exemption or no application
for reduction. Then, Your Honours - al though it is perhaps unnecessary to fill Your Honours in in detail to at the moment, it having been reduced to six units the Act goes on at pages 36 and 37 and it is proviso (b)(ii), it begins - I do not propose to
read it all to Your Honours. It begins towards thebottom of page 36. It says that:
(Continued on page 78)
C2T47/l/MB 77 SIR M. BYERS, QC 2/3/89 Chopra(2) SIR MAURICE (continuing):
Where an employee has ..... abandoned
any unit or units -
I am now at the top of page 37 -
and thereafter his salary is further
increased -
(a) he shall, unless he makes an election
..... be required to contribute for the
number of units appropriate to his then
rate of salary ..... or
(b) he may elect to contribute for one
or more of the abandoned units, in
addition to any additional units.
So the result of all this is that had she known she
could have had her contributions reduced to six and
she would have had the right on election to take
up additional units as her salary went up. Now, Your Honours, the point, in our respectful submission, of this case is whether her rights are lost because
the University, knowing that she was an employee 1
did not make their contribution to the Board and did
not deduct it from her salary.Your Honours, the point is really what rights does this Act give her and we say that if one goes
to section 21 one finds that:
Every man contributor who has served for
at least ten years with any one or more
employers shall be entitled to elect to
retire on pension from the service of
his employer upon or after reaching the
age of sixty years; and every woman contributor who has so served shall be
entitled to so retire upon or after reaching
the age of fifty-five years.
Then subsection (2) on the opposite page says:
Every contributor who has served for at
least ten years with any one or more
employers may be compulsorily retired on
a pension by his employer upon or after
reaching the age of sixty years.
C2T48/l/HS 78 SIR M. BYERS, QC 2/3/89 Chopra(2)
SIR MAURICE (continuing): So what Mrs Chopra had was a right to retire after the age of 55 upon a pension. That was a right. The question
is: does the fact that the employer had not
made contributions prevent her exercising that
right? And that is the only question because
she can go along and say to the Board, here
is the money, here is my contributions. Is
it an answer to the Board to say, "Oh, well,
the employer hasn't paid." The section does not
say so.
BRENNAN J: Why do you say she can go along to the Board
and pay up?
SIR MAURICE: Because she is exercising her right under section 21. She has a right to retire on a
pension after she reaches 55 - on or after.
TOOHEY J: Do you mean on the basis that she then makes by way of contribution the amounts that she
would have contributed had those amounts been
deducted?
SIR MAURICE: Yes, Your Honour.
BRENNAN J: Why? Why should she have to pay anything, on your argument?
SIR MAURICE: I am putting it at the highest. On one view, she said, she can then go along and pay.
The fact is that it may be that the University
has to contribute the whole lot because it was
its obligation to deduct and it is its obligation
to make a contribution but what I am saying
is, if you take her right as being a right
conditional upon paying,as my friends are saying,
then there is nothing to prevent her paying
when she retires on or after the age of 60.
BRENNAN J: Sir Maurice, on that basis there are two
possibilities, that her right is conditional upon her paying or having paid. In terms of the text of the statute there is nothing to
choose between those two, is there?
SIR MAURICE: Your Honour, there is nothing which says that you have got to - in the text of the statutes,
there is an obligation imposed upon the employer
to deduct, of course. But the employer has not deducted and so the question is whether
if she goes and - she is given this right under
section 21, is it an answer to the exercise
of that right to say, "The employer has not
deducted."?
C2T49/l/ND 79 SIR M. BYERS, QC 2/3/89 Chopra(2) BRENNAN J: That is one way of putting it but before one
says there is a right under 21 there is the
question of construing the term "contributor",is there not?
SIR MAURICE: Yes, of course, one has to construe the word "contributor".
BRENNAN J: One does not do that by assuming that there
is a right conferred on an employee under 21
and then saying, "Because an employee has that
right we construe 'contributor' in the way in
which you would contend for."
SIR MAURICE:
Your Honour, we would submit when one is construing the word "contributor", one is faced
with a number of meanings. Does it mean only someone from whose salary deductions have been
made? That is one meaning. We say, we respectfullysubmit, it does not mean only that and that section 20 shows it does not mean a person who has paid because the person who pays is the employer. Section 20 shows that the person who pays to the Board is the employer,who pays his contribution under section 16 and who pays
the employee's contribution under section 20. That is what happened.
(Continuing on page 81)
C2T49/2/ND 80 SIR M. BYERS, QC 2/3/89 Chopra(2)
SIR MAURICE (continuing) One then has the employer who has not paid or has not deducted and one has a person who
has subsisted throughout in the employment and the
question is whether she is entitled to the rights
under section 21.
DAWSON J: And you would say the rights which attach to 31 units.
SIR MAURICE: Yes, that is so, Your Honour. GAUDRON J:
Even though she is now retired and they were not subscribed for at the time of retirement?
SIR MAURICE: Your Honour, she has now retired in point of fact. She had not retired at the time the action was brought, of course, because the action was brought before she
retired - but that is a minor point. What I wish to
submit, Your Honour, is that section 20 is not
conditional upon the employee or contributor having
had deducted from the salary the amounts under section
20. But she is given this right under section 21 -
GAUDRON J: Yes, but unless you can assign a number of units
contributed at the time of retirement there is no
pension sum in the right-hand colunm.
SIR MAURICE: Your Honour, there is a minimum pension, of course. One always has a minimum pension under section 26(2)
so that the actual physical compilation - it is page 80.
It says:
The minimum amount of any pension to a
contributor ..... shall be two units.
So, Your Honour, what my friends are saying, and I
think what Your Honour -
DAWSON J: She could not have been two, could she, Sir Maurice? She must have been at least six.
SIR MAURICE: They could reduce it to six, yes, Your Honour.
DAWSON J: She could not have been two on the salary that she had.
SIR MAURICE: She would have had more, I would - - - DAWSON J: She would have had a minimum of six, had she - - -
SIR MAURICE: Yes, probably. I would think that is probably right, Your Honour, but had she applied for a reduction?
DAWSON J: Yes.
SIR MAURICE: Yes, I would think that must be right. But I think Justice Gaudron is putting something different to me.
I understood Her Honour to say that a reason why there
C2T50/l/BR 81 SIR M. BYERS, QC 2/3/89 Chopra(2) could be no entitlement upon retirement was because
there had not been the computation under section 26
and 27 worked out in accordance with the table, so
that then one would not know the exact amount.
DAWSON J: That is right in a sense, is not it? It must be
somewhere between six and thirty-one.
SIR 1:1AURICE: I would have thought so, Your Honour. The reason why I referred to a minimum was it is two, so I am
saying, "Well, at least you have always got to get
something so it does not matter that you have not
worked it out." But there are two ways of looking
at it,Your Honour. One is to say, one just looks at section 12 and one says, section 12 works out the
units according to the salary and it is just a matter
of computation, that is all. Then upon that, section 26 and 27 operate and one gets the amount, plus the
schedules and the table set the amount of contribution
and so on.
1:1ASON CJ: Sir Maurice, when you look at subsections (l)(a)
and (l)(b) on page 71, although they are dealing
with different cases, do not they convey the message
that entitlement to retire and to receive a pension
is conditioned upon payment?
SIR 1:1AURICE: They do in the instances they are talking about, Your Honour. I must say that because it says so.
There is no doubt about that.
(Continued on page 83)
C2T50/2/BR 82 SIR M. BYERS, QC 2/3/89 Chopra(2)
MASON CJ:
Yes, but what I was suggesting was that they perhaps reflect an undercurrent that, as it were,
lies at the very foundation of the statute. SIR MAURICE: Yes, well we submit, not, Your Honour, of course. Because, if one looks at (IA), one is
talking about an actual payment by the contributor.
When one is thinking of, say, an employment going on
for a considerable period of years, the way the
statute says the employee pays is, at least on one
view, by the hand of the employer. It is taken out
of his salary. So he does not pay in any normal sense. Someone else pays for him; pays at his expense, of course. But that is the sort of notion - - -
MASON CJ: But you would equate it to payment by deductions by the employer from the salary.
SIR MAURICE: Yes, well in the normal case that would certainly
be the case, Your Honour. The real problem is that this is not the normal case. The problem is that this is no fault of the contributor, in a sense.
She was never exempted; she was within the
framework of the Act; she is in the employment
throughout and the employer cho·se, for reasons the Act
does not justify, not to contribute. Now, that is the simple fact.
So, one then has to construe section 21 in
light of that. Now, that meant that she did not contribute then, from day to day, or from months to
months, from four-weekly pay period to four-weekly
pay period. She did not contribute, that is right. But that was no action of hers; it was something
outside the statute.
Then the problem is, why cannot she go along? That is the real point in this case.
Her employer,
who should have contributed, or deducted, says,
"Because I did not deduct, you have got no rights
under the statute". And that is a question of construction of the statute. And we say the statute does not envisage that the employee, for whose benefit
the statute was passed, is to be defeated by the
negligence, or even goodwill perhaps, of the employer.
BRENNAN J: That argument would have held much more force, would it not, if the fund out of which the payment was
to be made was the fund which was the funds of
government. But, this is a closed fund in the sense
that its income consists only of the contributions
and interest. So that those on whom the burden of the payment for which you contend, those on whom
that burden rests, are the contributors.
SIR MAURICE:
well, "the other of the employers.
contributors"in the sense
C2T51/l/JH 83 SIR M. BYERS, QC 2/3/89 Chopra(2)
BRENNAN J: No, the other potential beneficiaries. SIR MAURICE: Well, I submit, not, Your Honour, because what
I say on one - that, if she wishes to obtain her
pension, she is entitled to pay for it then and
there when she retires. There is nothing in the Act
that says she cannot. So there is no loss on theother contributors. There is no loss on the fund
because the Board, under section 19(3), can recover
the contributions from the University.
If Your Honour looks to the bodies who are to
be employees - I beg Your Honour's pardon -
BRENNAN J: Even though paid without interest, Sir Maurice? SIR MAURICE: I beg Your Honour's pardon? BRENNAN J: Even though paid without interest?
SIR MAURICE: Well, I suppose so, Your Honour. As a matter of construction, I suppose I would say that, but if
there is a decision about it then there is a
decision about it. But, Your Honour, "Employer"
means the Government of New South Wales
and such other bodies as are mentioned in
Schedule III to this Act, or as may be
added to such Schedule in pursuance of
this Act.
I must confess 1 have not gone through schedule III
but many of them are universities who receive
substantial monetary grants from government. Although
it is true, Your Honour - - -
MASON CJ: Substantial or not.
(Continued on page 85)
C2T57/2/JH 84 SIR M. BYERS, QC 2/3/89 Chopra(2) SIR MA.URICE: Well, Your Honour, His Honour Mr Justice Brennan
put to me that the proposition which we would say is
simple and obvious would seem simpler and more obvious
if it was to be at the expense of government. Now, that is all I am endeavouring to say, that really,
when you look to this, that is really what happens.
So, Your Honour, one cannot reiterate the point on an on.
in any event, I suppose
We say
she was not exempted; her salary was not reduced;
that was due to her ignorance and the false information
she was given by the employer and you cannot say that
section 21, so we would submit, gives her a right
conditional upon performance by the employer of its
statutory obligation to deduct and that that right
is lost if there is not deduction. Might I just
remind Your Honour that I think my learned friend,
Mr Handley, may have said this too but, if not, I apologize. Section 19(3) says:
The Board may recover the amount of any
contribution due and unpaid together with
interest thereon in any court of competent
jurisdiction.
So, that means that the case is envisaged of non-payment
by the contributor and it is quite explicit in
section 19(1). So that means it does not contribute all the time and by the other contributor, the Board
and, no doubt, if they wish to assert a right of action
against Mrs Chopra well, then, they would have the
right of action under section (2).
DAWSON J: May I get this clear, Sir Maurice: you she is entitled to a pension equivalent of 31 units. SIR MA.URICE: Yes, Your Honour. DAWSON J: She could have applied to have it reduced; she
did not, so it remains at 31.
SIR MA.URICE: It remains at 31, yes, Your Honour.
DAWSON J: Yes.
SIR MA.URICE: I think I have mentioned ways in which it could have been reduced and, also, I want to say,
Your Honour, that it is no answer to say that the
amounts are not fixed under section 27 because there is a minimum payment under section 26(2).
So, what that means is is obvious enough, that she would be always entitled to some payment. I
think I have mentioned the fact that one could take
up the abandoned units by virtue of section 12 and
section 11.
C2T52/l/SH 85 SIR M. BYERS, QC 2/3/89 Chopra(2) Now, I think, Your Honours, that is all I
have to say about the Act as it stood at the time
of her entry into the fund. We submit that the
conclusion of the Board below is right and that
the word "contributor" does not mean "pay" and wesubmit the context makes that clear.
Could I just go now to the 1976 Act. What
that Act did was to take away from the definition
of "employee" the word "contributor". So, it read:
"Contributor" means "an employee".
That is the way, for relevant purposes, it has remained
and she was, clearly, an employee. There can be no
doubt; there is no dispute about it. Now, what my learned friends seem to say is that the words of
exclusion in the - would Your Honours just pardon
me a moment?
(Continued on page 87)
C2T52/2/SH 86 SIR M. BYERS, QC 2/3/89 Chopra(2)
MASON CJ: It is on page 18 of Mr Bennett's material. SIR MAURICE: Yes, Your Honour, unfortunately at the moment
I cannot find it. What they did, Your Honours, they inserted - not that this matters - "Contributor
for full benefits", "Contributor for limited benefits",
and then in the schedule they omitted the definition.
They said:
insert instead:-
"Contributor" means an employee, but does
not include-
(b) an employee while rejected or not
accepted as a contributor under this Act as in
force at any time before 13th January, 1977.
Now, Your Honours, what we submit about that is
that the words of exclusion in paragraph (b) do
not apply because they are references to section 11A(2)
of the Act which is in our print at page 30 which
says that:
the Board may -
(a) refuse to accept such employee ..... (b) accept such employee as a contributor .... . or; (c) postpone his acceptance.
Now, first of all, of course, the Board has not done anything in relation to it, but the language in
paragraph (b) seems to echo the powers that
that 11A(2) confer on the Board given a report
because they say "refuse to accept"; "rejected"
they say, or "accept" or "postpone his acceptance
as a contributor". Then they say, if one goes back to the other Act: an employee while rejected
well, that is refuse to accept -
or not accepted -
that could either be postpone his acceptance -
under this Act as in force ..... before -
the (AMENDMENT) ACT. Your Honours, we submit that the clear parallelism - and that the learned judge
at first instance, whose judgment by the way was
set aside, the whole judgment was set aside by
the Court of Appeal. I do not know what consolation my friend gets from his judgment quite honestly
but the orders of the Court of Appeal set it aside
so that one has no finding left really. But what we say is - and I am referring, 0£ course, to formal
orders - that she was an employee, she was neither
rejected nor did she fall within any other part
C2T53/l/MB 87 SIR M. BYERS, QC 2/3/89 Chopra(2) of paragraph (b) of the definition of "contributor"
in the 1976 Act. Thereupon she became a contributor.
Your Honours, the language of that Act lends some
sort of support to the notion. If one looks to
Mr Bennett's papers - page 21, Your Honours,
section 10 0(2):
(Continued on page 89)
C2T53/2/MB 88 SIR M. BYERS, QC 2/3/89 Chopra(2) SIR MAURICE (continuing):
An employee who was not contributing
to the Fund on 12th January, 1977, but who
was required by section 11 to contribute - Your Honour sees, that does treat section 11
as compulsory, as imposing an obligation as
we submitted -
to contribute to the Fund on that day,
shall, subject to section lOW -
which does not matter -
contribute to the Fund as from the day on
which, and for the number of units of pension
for which, and at the rate for each such
unit at which, he would have commPnced
contributing had the SUPERANNUATION (AJ.'1ENDMENT)
ACT, 19 7 6 -
that is this Act -
not been enacted, and shall thereafter
continue to contribute to the Fund for the
number of units of pension for which he
so commenced contributing at the rate for
each such unit as he so commenced contributing or at such other rates as may from time ~
to time be fixed -
The judge referred, I think to lOAC which really has nothing to do with it and I think that
all parties agree with that.
My learned friends concede, I think, that
section lOAC to which Mr Justice Yeldam referred really does not have anything to do with the
present case. Your Honours, the point of that, the point of 10 0(2) is that it indicates two
not be paying, firstly, and it indicates that things: it indicates that a contributor need this Act applies to an employee who is not contributing and, therefore, the definition falls upon him and the intention of the Act
is that he should be benefitted by it. Thatis about all I can say. That is what we say about that Act, if
Your Honour pleases.
BRENNAN J: Sir Maurice, can I take you back to
section 11A(2)(b) at page 30 of your print which
is the power of the Board to accept an employee.
I am not sure that I follow why it is that if
that power has not been exercised the person
C2T54/l /ND 89 SIR M. BYERS, QC 2/3/89 Chopra(2) is not a person who has not been accepted as
a contributor within the definition.
SIR MAURICE: What we are saying, Your Honour, is that the words of exclusion in the definition, they
being in paragraph (b) of the definition of
"contributor" in the 1976 Act which excludes
a person who was rejected - page 18.
BRENNAN J: Yes, "rejected or not accepted".
SIR MAURICE: Yes, Your Honour. We say that means a person whom the Board has refused to accept or rejected
under section 11A(2).
BRENNAN J: Why?
SIR MAURICE: Because we submit, that that - for two reasons, I suppose, Your Honour. First of all, because
the powers that are given in 11A(2) are powers
in which the notions of rejecting, refusing
to accept, appear and also because theparagraph says:
under this Act as in force at any time
before 13th January, 1977 -
which is the date of promulgation of the 1976
Act.
DAWSON J: But really what you say, Sir Maurice, is it not, that 11(2)(b) is speaking of acceptance for limited benefits; in other words, it is
a partial rejection. What you say is that
you do not need any acceptance from the Board
because the Act does that for you.
(Continuing on page 91)
C2T54/2/ND 90 SIR M. BYERS, QC 2/3/89 Chopra(2)
SIR MAURICE: Yes. DAWSON J: All you need is a refusal to accept or acceptance on a
limited basis.
SIR MAURICE: But in any event,we would say in addition to what Mr Justice Dawson said, we would say that
harks to that power because, Your Honour - perhaps
I have not made it quite clear. What this Act did
was to repeal section llA. That is not in my
learned friend's copy but it repealed section llA
and introduced a substantially new provision about
medical examinations.
When one goes back to the words of exclusion,
page 18, one sees that it says:
an employee while rejected or not accepted
as a contributor under this Act as in force
at any time before 13th January 1977.
So it is harking back to the operation of the
unamended Act which this Act amended in a relevant
respect. That is why they are saying:
while rejected or not accepted as a
contributor under this Act as in force.
And really, I suppose, it gets back to what His Honour
Mr Justice Dawson says that, "Well, the Board has said,
'Well, I won't have you because of the medical
examination'." They then say when they were taking
out the medical examination provision, "Well, we arenot allowing to come in the people who have been
rejected because of the Board's exercise of authority
under section 11 A(2)" · , and that is the only reason,
that is the only exception.
BRENNAN J: Why are those persons not entirely covered by the word "rejected"?
SIR MAURICE:
Maybe they are, Your Honour, but what the Board may do; it may refuse to accept; it may accept for limited
benefits or it may postpone acceptance.
BRENNAN J: Those under paragraph (b) of 11A(2) do not come
into the exception of paragraph (b) in the definition
of "contributor", do they? They have been accepted.
SIR MAURICE: Those who have been accepted have been accepted, yes. BRENNAN J: Yes, they have been accepted. So we do not have to worry about (b). Those people are in. Paragraph (c),
there are people who have been postponed.
SIR MAURICE: I am sorry, Your Honour is talking about 11A(2)(b).
I am indebted to Your Honour. No, you do not have to
C2T55/l/BR 91 SIR M. BYERS, QC 2/3/89 Chopra(2)
worry about those, Your Honour. But what you may do under (c) is postpone acceptance and, say, to postpone
acceptance is not inaptly referred to as not accepted.
Because she has had a medical examination and the
Board said, "Well, all right. I've got the medicalexamination." They say, "I won't refuse to accept
you, that is, reject you. I won't accept you" - that is (b) - "but I will postpone acceptance", and what
they have said under the definition in 1976 is,
"not accepted" which is an apt description of postponing
acceptance.
TOOHEY J: Did the matter ever get to the Board? SIR MAURICE: No, I do not think so, Your Honour. TOOHEY J: All the correspondence in the appeal book is
correspondence between the University - at least
the relevant correspondence - and Mrs Chopra.
SIR MAURICE: Yes, Your Honour. It did not get to the Board at all. All that happened, as I understand the evidence
was, that there was the examination and then the
results of the examination went back to the employer.
TOOHEY J: But if does not get to the Board, why is your client then a person who has not been accepted?
SIR MAURICE: Because the judge said, "Oh, well, not accepted is a sort of language of contract, and you're not
accepted if you'.re not accepted", but that is really
what he was saying.
BRENNAN J: Is there any other power in the Act which provided for acceptance?
(Continued on page 93)
C2T55/2/BR 92 SIR M. BYERS, QC 2/3/89 Chopra(2) SIR MAURICE: No. llA is the only one which uses the word "accept" or "postpone acceptance".
BRENNAN J: Well, take the ordinary case. A perfectly clear medical report; employee, deductions paid
to the Board. At what stage does a person become accepted, if that is the notion that the Act knows
at all.
SIR MAURICE: Your Honour, the Board has no choice. We would say he is accepted -if you could use the same thing
as a contributor - he is accepted once the
obligation falls on him as an employee to contribute.
But, in the sense, what 11A(2) does is give the
Board a sort of overriding power to set that aside
in those cases where the medical examination takes
plac~ or perhaps the Board's decision takes place,
after he has become an employee and thus within 11(1).
And so - - -
DAWSON J: In other words, the obligations under the Act flow, unless he is rejected or not accepted.
SIR MAURICE: Yes, Your Honour. And the only power to do it is in 11A(2) and we say, that is what they are talking
about in the definition. So, we submit, Your Honours,
that is, in our submission, reasonably clear.
Now, Your Honours, that is all I would wish to
say about that. I think some reference was made to the first Act of 1985, that is the SUPERANNUATION
(SCHEME CLOSURE) AMENDMENT ACT 1985.
Your Honours, we would wish to say a number of
things about that. Firstly, it is page 23 of
Mr Bennett's compilation. Section (2) says:
Notwithstanding any other provision of this
Act, a person is not required or entitled to
become a contributor to the Fund and is not
entitled to elect to become a contributor
to the Fund -
(a) in the case of a person who was an employee, but was not a contributor,
immediately before the prescribed
day.
Now, Your Honour, the "prescribed day" they define -
in this section, lA(l) , Your Honours - "prescribed
day" means
the day appointed and notified under
section 2(3) of the STATE PUBLIC SERVICE
SUPERANNUATION ACT, 1985.
C2T56/l/JH 93 SIR M. BYERS, QC 2/3/89 Chopra(2) Your Honours, that date in the Government Gazette
is 1 July 1985. That is in Government Gazette
of 1 May 1985, No 76. We can hand copies to Your Honours, if so. Then, if Your Honours turn over to the next Act, that is page 26 and you will see "Commencement",
section 2:
This Act shall be deemed to have commenced on 1 July 1985.
Then, if Your Honours turn over to page 27 and you
will see Amendments to the Principal Act Relating
to the Closure of the Scheme, Section lA:
Omit the section.
So, the section really never had an operation. One can put it aside.
(Continued on page 95)
C2T56/2/JH 94 SIR M. BYERS, QC 2/3/89 Chopra(2)
SIR MAURICE (continuing): Now, if one goes to schedule 3 which is at page 27 of Mr Bennett's compilation,
Your Honour sees what the Act says:
Closure of Scheme to persons employed on or
after 1.7.1985.
Now, it is clear that the plaintiff was not such
a person and then lA says:
(1) Notwithstanding any other provision of
this Act (except subsection (3)), a person
is not required or entitled to co1Illllence
contributing to the Fund on or after 1 July 1985.
Now, Your Honours, at the time this Act took effect,
there were definitions of "contributor", "employer"
and "employee" in the SlJPERANNUATION ACT. There is
a consolidation of it, of which I have counsel's
copy. It is rather difficult to get, Your Honours.
This is, I think, a reprint as at 1984 but it contains
a definition of "employee". It means a person
employed by a - in a form Your Honours will now be
contains a definition of "contributor",
familiar with, only slightly more elaborate because meantime,and
meaning an employee but does not include an employee
while exempted from contributing, an employee while
rejected or not accepted or an employee to whom
clause 4(1) of schedule 17 applies.
So, one has definitions. Now, what they have
said is:
A person is not required or entitled to
connnence contributing to the Fund on or after
after 1 July 1985.
What we submit that means is that no one - we are not
talking about existing members or people who have
been existing members. They are talking about new people, people employed on or after 1 July 1985
and then we say that is supported by subsection (2)
because it says:
Subsection (1) applies, subject to subsection (3),
to a person who was previously -
in other words, a person who had been and had ceased
to be -
a contributor to the Fund, whether before or
after 1 July 1985.
C2T57/l/SH 95 SIR M. BYERS, QC 2/3/89 Chopra(2) For example, someone who had been in the fund,
had become a member of Parliament and left the
fund and then sought to come back. So, it excluded people employed on or after 1 July and
people who had heretofor but were not contributors
to the fund before or after 1 July, who had ceased
so to be.
So, we say, Your Honours, with respect that
it is just not talking to employees at all and that
is the first thing we would wish to say about it
and subsection (3) says:
Subsection (1) does not apply to -
(a) a person who was, immediately before 1 July 1985, an employee but was not
contributing to the Fund, being a person
to whom Schedule XXI applies and who elects
to become a contributor to the Fund inaccordance with that Schedule.
Now, may I go to that now because we say that has happened.
(Continued on page 97)
C2T57/2/SH 96 SIR M. BYERS, QC 2/3/89 Chopra(2)
SIR MAURICE (continuing): Your Honours, can I take Your Honours to clause 2(1) at page 28, and it says:
A person to whom this Schedule applies
may elect to contribute to the Fund if -
(a) before 1 July 1985, the employer of
the person has notified the Board that theperson is an employee; or
(b) on or before 31 December 1985 -
(i) the employer of the person notifies
the Board that the person is an employee.
Then one goes to (2):
Where, within the period of 28 days after
a person to whom this Schedule applies is
given notice by the Board that the employer
of the person has notified the Board that theperson is an employee, the person does not
make an election referred to in subclause (1)
or apply to the Board to be excluded ..... the person shall be deemed to have directed that the notification given by the employer be
regarded as an election.
So there is a statutory election. That is at page 29.
So then, what is the evidence? If Your Honours go to the appeal book, and these are events
occurring before 31 December,and Your Honours go
to page 50, this is a letter from the Board to the Vice-Chancellor of the University of Newcastle, in
other words, the employer, and he sets out a history, but if Your Honours go down to line 19:
As you are aware, any person who satisfies
the definition of employee contained in the
SUPERANNUATION ACT 1916 is a compulsory
contributor ..... unless granted exemption.
Now, we would say that is perfectly correct, Your Honours.
An employee is defined as one who is
employed by an "employer" (such as the
University), who is required to give
his whole time to the duties of employment
and who is paid at an annual rate of salary.
It would appear from the above information
that Mrs Chopra is eligible for Fund
membership. A review with the Board's records indicate that Mrs Chopra has not
been granted exemption by the Board from
contributing to the Fund.
C2T58/l/HS 97 SIR M. BYERS, QC 2/3/89 Chopra(2) In the event that Mrs Chopra is found
to be eligible for Fund entry from a past
date the payment of arrears ..... cannot be
calculated until after Mrs Chopra's rate
of contribution is established .....
In view of the fact that the Fund has not
had the benefit -
they say, "We await your advice". Then if Your Honours go over to page 52, the first paragraph says:
We have received your letter ..... regarding
a member of the University's staff.
She was a tenured professor and they are saying, 1n the clearest of language, to the Board, that
Mrs Chopra was their employee. If I go back to page 28, clause 2: (b) on or before 31 December 1985 -
(i) the employer of the person notifies
the Board that the person is an employee.
We sa½ yes, that happened.
(Continued on page 99)
C2T58/l/HS 98 SIR M. BYERS, QC 2/3/89 Chopra(2)
SIR MAURICE (continuing): Now, the next and other relevant matter is at page 43, and this is a letter from
the University's solicitors to the Principal Legal
Officer, State Superannuation Board, and they:
confirm that, at the conference, we provided
you with photocopies of douments on the
personnel file held by The University of
Newcastle in respect of Mrs Audrey Lilian Chopra.
We note that such copy documents included all
appointment as a Lecturer in the Department
correspondence between the Uni,1er3ity and
of Education including a letter from the Vice
Chancellor to Mrs Chopra dated 24 October 1969.
Now, if Your Honours go to page 27 Your Honours will
see a letter from the Vice-Chancellor to Mrs Chopra,
24 October:
I am pleased to offer you appointment as
Lecturer in the Department of Education -
and it sets out salary and so on. The next letter, the next page, Your Honours, Mrs Chopra says:
I have much pleasure in accepting the
offer.
Now, we respectfully submit, Your Honours, that it
is therefore quite clear that the provisions of
the relevant clauses, number 55 of 1985, that is,
2(1)(a) - would Your Honours just pardon me a moment.
The first letter at page 50 was before 1 July,
and the reply, and on and before 31 December the
later letter that I have referred Your Honours to
at page 43, which included the reference to the
letters at pages 27 and 28. I am reminded of one other thing:. one of the things the learned judge, at first instance, said, "Well, this occurred at the time the litigation was in being." Well, of course, the litigation cormnenced in October 1985 before the
Act was assented to. The Act was assented to, Your Honours see, at page 2, the surmnons dated 10 October 1985, while she was still an employee
and therefore would normally be construed as
relating to matters occurring while she was still
an employee and hence questions arising under 27,
perhaps, are not irmnediately relevant.
We would remind Your Honour the Chief Justice
of some observations - I do not want to read them,
but to that effect - in the case of
REG V DUNPHY EX PARTE MAYNES, 139 CLR 482 at 495.
C2T59/1/MB 99 SIR M. BYERS, QC 2/3/89 Chopra(2)
SIR MAURICE (continuing): Your Honour, therefore we submit that even if Mrs Chopra was not within
the 1970 Act she was caught up by thesubsequent enactments. If the Court pleases.
BRENNAN J: Sir Maurice, is there any evidence of an
election under subsection (l)?
SIR MAURICE: No, but there is a deemed election. What we say about - I am not quite sure what
Your Honour has in mind.
BRENNAN J: Schedule 21. SIR MAURICE: If Your Honour goes to 2(2), on the top of
page 29:
Where, within the period of 28 days
after a person to whom this Schedule
applies is given notice by the Board that
the employer of the person has notified
the Board that the person is an employee -
and we say the employer did notify the Board -
the person does not make an election referred
to in subclause (1) or apply to the Board
to be excluded ..... the person shall be deemedto have directed that the notification given
by the employer be regarded as an election -
GAUDRON J: ls that not conditional upon notice being given
by the Board?
SIR MAURICE: It says, "does not make an election".
GAUDRON J: No, it says, "Where, within the period of
28 days after a person ..... is given notice by
the Board".
SIR MAURICE: It does not make an election but then it
says: the person shall be deemed to have directed that the notification - Your Honour is saying to me that even the deeming
does not apply unless there is a notice?
GAUDRON J: Yes, I am asking you Sir Maurice.
SIR MAURICE: We would submit not, Your Honour. One then has a statutory - if there is no notice you
have a statutory election. After notice hedoes not make an election then he is deemed
to have directed. We certainly agree that there
was no election. So then I would submit that
C2T60 /1 /ND 100 SIR M. BYERS, QC 2/3/89 Chopra(2) what follows from that - there certainly was
no notice from the Board, I think that is right,Your Honour. What we submit, Your Honour, is
that the statutory consequence is that if the
Board does not notify he is deemed to have elected
but, Your Honour - that is all I can say in
answer to what Your Honour put to me and which I submit would be the correct view. Your Honours, we have a chronology, if Your Honours would think it at all helpful and I can leave it with Your Honours' associates.
MASON CJ: Yes, it may be helpful, Sir Maurice. SIR MAURICE: If Your Honours please.
MASON CJ: Yes, Mr Bennett.
MR BENNETT: May it please the Court. I will deal first with my learned friend's submissions concerning
the 1969 position. My friend first referred
to the definition of "contributor" as it existed
then which appears at page 1 of my summary ofthe legislation.
(Continuing on page 102)
C2T60/2/ND 101 2/3/89 Chopra(2)
MR BENNE'IT (continuing): My friend relied on the words "this Act" and suggested that those words in
some way qualified what went previously. His
submission, as I understand it, was that the
purpose of the phrase "who is contributing
under this Act" was to distinguish it from aperson contributing under some other Act, rather
than to emphasize the word "contributing".
If that were so, one wonders why it needs to
be said at all. If my friend is right in saying that
a contributor is an employee, subject to specific
exceptions, why would one need to have those
qualifying words at all, if it had the narrowmeaning' P.nd, indeed, the later amendment rather shows that a different view was then taken. So, we would submi 4 that does not assist Your Honours
in reaching the conclusion for which he contends. Secondly 1 and it may be convenient for this
purpose if I take Your Honours to the Act which
my learned friend handed up: he referred to
section 19 and he submitted that that shows that
the reference to "contributor" did not correspond
to a person who was making payments but we would
submit that there is a number of reasons for that.
First, that section, of course, the first part of
that section is primarily concerned with a very
narrow and specific case and that is the case of
a gap. I have conceded that if a person were making contributions and then, for example, were to go on
leave and, during his leave, not make contributions,
he might nevertheless remain a contributor for some
intervening period. But that Every different from
the way my learned friend seeks to use it.
Thirdly, my learned friend refers to the provisions about reduction and electing to take a
lower number of units and what powers the Board has to grant and what powers the employee has to
seek and so on. What those provisions do is demonstrate the difficulty of defining "contributor" the way the Court of Appeal defined it because it means that in
every such case you then have to try and work out
what elections are deemed to have occurred or deemed
not to have occurred and worse still, one must do
that in a situation where the Board has never been
given the opportunity to make whatever elections it
is entitled to make. The very variety and scope of those elections and choices which the Act builds in makes it unlikely that ·"contributor" was intended to
mean "an employee".
My friend then submitted that in Mrs Chopra's case there would have been good reason for a reduction
C2T61/l/SH 102 2/3/89 Chopra(2) and he refers to the misapprehension she was under
which he described as being causative of the problem;
the misapprehension in that she did not realize that
she was entitled to proceed for a lower number of units. It is interesting that he now submits,
notwithstanding that, that if he succeeds he is
entitled to 31 units. The mistake which he relies
on as having got his client into that situation is
the inability to realize you could reduce the number
of units and yet he says the consequence is that you
should be deemed to be a contributor for the full
amount of 31 units but, in a very real sense, this
is not so much a case of a failure of an employer
to comply with its statutory duty, although that
occurred, as much of a failure of the employee toapply for the exemption or reduction which, in the
normal course, would have been done. That, perhaps,
goes more to the merits than to the legal analysis
of the situation.
(Continued on page 104)
C2T61/2/SH 103 2/3/89 Chopra(2) MR BENNETT (continuing): But, what that does show is that
to read the word "contributor" in the way my friend
reads it leads, and would lead in this case, tofar more problems than it solves. My friend then refers to section 21 and says he has rights under
that section. The answer to that, as I think
Your Honour Mr Justice Brennan pointed out to my
learned friend, is that that section uses the
word "contributor" and he only gets within thatsection if he succeeds on that threshold question.
Your Honour the Chief Justice asked a question
about the word "payment" and referred to the
reference in section 21(1A) to:
On such payment being so completed.
We respectfully submit that that does support our
contention. There is no reason, of course, why "pay"
cannot include "pay by deduction". That is a normal
method of making payments. And there are many situations where one pays by having the amount
deducted from some other transaction. We would submit it rather shows the overall intention of the legislation.
Finally, on that aspect, there is one matter
which fell from my learned friend, I am sure by
accident, where he referred to false information being
given to Mrs Chopra. There is no suggestion she ever
received false information. The evidence was that she had not been advised of something which, if she had
been advised of it, might have caused her to act
differently. There was no suggestion of false information. Then, I turn to the submissions in answer to the
contentions and I hand to Your Honour an outline of submissions in relation to those matters. These are the 1976 Act and the 1985 Act.
MASON CJ: Thank you, Mr Bennett. MR BENNETT: Now, Your Honours, my learned friend submitted that
the excluding words in the 1976 definition, "not accepted", were part of a complex which related to
section 11A(2). Might I invite Your Honours to have
in front of Your Honours both sections open; the
easy way of doing that is to take page 9 of mv
summary which have 11A(2) and page 18 which has the
definition of "contributor". If Your Honours would
just, with some manual dexterity, have pages 9 and 18 - - -
MASON CJ: It seems to be the most complicated way of doing
it actually. We have page 30 of Mr Byers' .cor:.1pilation of the statute and page 18 of your material.
C2T62/l/JH 104 2/3/89 Chopra(2) MR BENNETT: Yes. I will do it that way, Your Honour, it is
probably easier. Your Honours, the first point is that there is no correlation or identity. The
concepts on page 18 in the new definition are,
"exempted", ''rejected" and "not accepted". The concepts in 11(2) are: (a) refuse to accept -
which means reject -
(b) accept -
which is not one of the characteristics at all, and -
(c) postpone his acceptance
which does not really fit with any of those. If the
draftsman was trying to fit in with those, one would
have thought he would have used the precise phrase.
But, even more obviously than that, as my friend has
pointed out, we know that section 11A(2) was repealed
at the time this Act was passed - that appears elsewhere
in the legislation.
(Continued on page 106)
C2T62/2/JH 105 2/3/89 Chopra(2) MR BENNETT (continuing): And we also know that the third
exclusion in the definition is l0H(l). May I invite Your Honours' attention to section l0H(l) which I think can only be found in Mr Handley's document,
that large book.
MASON CJ: What page is that there?
MR BENNETT: It is at page 480, Your Honour. Section l0H
which is really part of the replacement for llA(l)
says that:
a person who was an employee but not a
contributor (whether for full benefits or
for limited benefits) on 12th January, 1977,because the Board refused to accept ..... or
postponed his acceptance ..... shall not
contribute to the Fund.
Why would there be the need, if one were specifically
referring to that in the third exclusion from the
definition, to repeat it in the earlier exclusions?So the earlier exclusions must be referring to
something else and, we would submit, they are
not referring to l0H or to its predecessor provision.
What they are referring to, we would submit, is
the normal English meaning of the words which is
always a good fall-back position in construing the
statute. And the ordinary English meaning of thewords - - -
BRENNAN J: If anyone can give a meaning to "accepted".
MR BENNETT: Your Honour, there are number of things it can
mean. It can mean that the Board has made one of its elections. It can mean that the Board has
indicated in some way that an employee has been
added to its list and is contributing to it. It canmean, probably most likely, that the Board has accepted
contributions ii. relation to that employee. In other
words, once the deduction has been made by the employer
and the employer has made its contribution as well,
the Board has to accept the cheque and by doing so has,no doubt, for all practical purposes, accepted
the employee as a contributor. And that perhaps is
the most likely meaning.
Whatever else one may say about Mrs Chopra's
situation in 1977, she had not been accepted in any
form by the Board. The reference, incidentally, to
the repeal of section llA appears at page 520 of
Mr Handley's legislation book, but I will not take
Your Honours to that.
DAWSON J: Just going back - she had not been accepted
and she had not been not accepted.
MR BENNETT: That is so, Your Honour.
C2T63/l/BR 106 2/3/89 Chopra(2)
DAWSON J: Entirely neutral. MR BENNETT: She had been not accepted in that she had not been accepted.
DAWSON J: That might not follow.
MR BENNETT: But there had not been an act of non-acceptance. There had been an absence of activity which, we submit, amounts to a non-acceptance. If one wants
to elaborate on the semantic aspects and turn to
the merits a little, we had not been given theopportunity to not accept in the sense to which
Your Honour refers. And, of course, "postpone"
certainly is not equivalent to "not accept". If one
was going to use that, why not say "postpone".
The second aspect of the 1976 Act concerns
section 10 0(2) and that appears at page 21 of
my legislation summary, and my learned friend
submits that that indicates that a contributor
need not be a person who is actually contributing.
(Continued on page 108)
C2T63/2/BR 107 2/3/89 Chopra(2)
MR BENNETT (continuing): We would say it indicates
exactly the opposite. Your Honours will notice that what is missing from section 10 0(2) is the
word "contributor". The section says: An employee who was not contributing.
If my friend had been right it could equally have said, "a contributor who is not contributing".
Do Your Honours have that provision? It is page 21
in my document.
MASON CJ: Yes. MR BENNETT: So one has an employee who is not contributing but who is required by section 11 to contribute
"shall contribute". All that does is continue the pre-existing statutory obligation in relation to
which both employee and employer were in breach, but it does not do any more than that. I~ does not say
anything one way or the other on whether one treats
them as having done what they ought to have done.
That is the question we are debating, and this
subsection is silent as to that. All it does is
continue the pre-existing compulsion in relation to
people who were employees but not contributing.
Coming to the 1985 - - -
MASON CJ: Before you leave that, Mr Bennett, can you tell me
the date on which the 1976 Act came into operation?
MR BENNETT: Yes, 13 January 1977, Your Honour. BRENNAN J: That is the day after the date referred to 1n section lOA?
MR BENNETT: Yes, that is so, Your Honour. I think midnight between the 12th and the 13th was the moment when it
came into effect, and therefore the one date is
referred to for one purpose and the other for the
other purpose. I do not think the PROWSE V McINTYRE type of analysis was applied to the statute. My learned friend then came to the 1985 Acts and in relation to the first 1985 Act he submitted
that it never came into effect so far as is relevant
because of the date 1 July. That is clearly correct.
The way in which we use the first 1985 Act is not
to achieve the result we seek to achieve, but
to demonstrate the reason for subsection (2) in
the second Act. If one could put it colloquially they got it wrong the first time and cured it the
second time, and all the first Act does is show
conveniently what the mistake was and what was
done in order to cure it. That is the only way we use the first Act in 1985.
C2T64/l/HS 108 2/3/89 Chopra(2)
MASON CJ: Mr Bennett, can I interrupt you to ask you this; how can it be that paragraph (b) of the
definition of "contributor" in section 3 of the
1976 Act is referring to section lOH, when
section lOH, as I understand it, was not in force
before 13 January 1977?
(Continued on page 110)
C2T64/2/HS 109 MR BENNETT, QC 2/3/89 Chopra(2)
MR BENNETT: We do not suggest it is, Your Honour, we say it is not but the way I use lOH - lOH is
referred to in paragraph (c) - - -
MASON CJ: Yes, I see that. MR BENNETT: - - - and my friend's submission was lOA and Bare simply picking up the language of
11A(2). What I have submitted is that field
is covered by the way it has been done in
paragraph (c), which refers to the successor
section to 11A(2), partial successor, and inany event there is no identity between the concepts
in (a) and (b) and the concepts in 11A(2).
MASON CJ: I can follow that but I just do not follow, at the moment, how you are making use of the
argument that (b) must be referring to a regime
of the kind that you see in lOH.
MR BENNETT: I suppose, Your Honour, it would have been possible for the draftsman to have said, "I've
got (a) and (b) in relation to the old position
under 1 lA ( 2) and I ' v e g o t ( c ) i n r e 1 a t i on t o t he new position under lOH." Had he done that one
would have thought he would have referred to11A(2) in the same way he referred to lOH.
MASON CJ: Yes, I can follow the way you put it now but I had not quite followed the strength of the
argument that you were putting before when you
were relating it to lOH .
MR BENNETT: Your Honour, it needs the refinement I have
just added to have the strength, I concede that. Your Honours, then coming to the final
Act, the second Act of 1985, my friend first
referred to the heading. I have not given Your Honours this because I had not prepared
myself to deal with that argument but there
is a reference in paragraph 73 of Pearce on
Statutory Interpretation, the second edition, to a decision of this Court in BRADLEY V THE
COMMONWEALTH - the only reference Pearce gives
is, I suspect because of the date, 1 ALR 241,
at 256. I think the new edition probably has the Commonwealth Law Reports reference. Pearce
refers to the outright rejection of the use
of a marginal note as an aid to interpretation
by Sir Garfield Barwick and Sir Harry Gibbs.
That is a marginal note but we would submit
that the same applies to a heading.
The heading, really, is not of any great significance in construing what was said.
Corning
to the words: my friend's submission-and this
is page 27 of my statutory material, my friend's
. 2T65/l/ND 110 2/3/89 Chopra(2) submission about subsection (2) is that that
is applying to a person who was a contributor,
when a public servant or employee of a designated
body, then left it, was for a period a person
with nothing at all to do with the public service
or that body at all, and who then came back
and it is then provided that the previous
subsection is to apply to him.
One asks rhetorically: why would one want
to say that? What reason would there be for
the draftsman thinking that such a person might
be thought to fall within the words? The section
says:
a person is not required or entitled to
commence contributing to the Fund on or
after 1 July 1985.
Why would they have needed to say that also
applies to someone who was once a public servant
and is not any more? It is a rather whimsical
provision to insert if that is what one meant.
On the other hand, if one looks at the earlier
Act which had the difficulty that if one construes
the word "contributor" the way the Court of
Appeal has construed it, the Act failed in one
possible objective, namely, to exclude people
who were technically contributors but who were
not contributing, then it makes perfect sense.
And what it is doing is saying, "Well, we are
going to exclude people who have not yet
commenced contributing, even if technically
they fall within the definition 'contributor' in the earlier Act. 11
(Continuing on page 112)
C2T65/2/ND 1 1 1 MR BENNETT, 2/3/89 Chopra(2)
MR BENNETT (continuing): Looked at that way, the subsectie>n _ makes perfect sense and one sees why - or one of the
reasons why - it was re-enacted in a different form to
that in which it was originally enacted. We would schedule XXI and the question of
submit that is clearly the meaning of subsection (2). provisiors in
notification. My learned friend submitted that
there were two notifications, or two occasions on
which the University notified. The first of those is very much a matter of finding the admission.
The Board, on page 50 of the appeal book, wrote
to the University and said, in effect, "We have been
given all this information by the union. It seems on this information that she is a person"- and I
will paraphrase - "in relation to whom you are
entitled to make a notification. Are you going to do so, what is the position?" and it sets it all
out and asks the question. The University replies: We have received your letter ..... regarding
a member of the University's staff.
Then the second paragraph, which is rather more
important and was not read:
Naturally, we have felt obliged to seek legal opinion on this matter .... and it would seem to
be inappropriate for us to engage in involved
discussion.
So what the University says is, "We have got your
letter, we are taking legal advice" and because
they have described the letter as regarding a member
of the University's staff, which is, of course, what
the letter says it is about, the University is saidto be notifying the Board of the various matters.
That, we would submit, with respect, is a highly
artificial construction to give that letter. I will come in a moment to what is required by "notify"
but whatever it requires it must require something more than that.
It is not even saying she is a member of the
University's staff, it is really saying, in its
context, "The subject-matter of your letter purports
to be a member of the University staff." It is
describing the letter.
BRENNAN J: But the University's letter is headed "Mrs Chopra"? MR BENNETT: Yes, that is a so.
C2T66/l/MB 112 2/3/89 Chopra(2)
BRENNAN J: Surely if it is headed "Mrs Chopra" and says: We have received your letter ..... regarding a
member of the University's staff
is that not saying Mrs Chopra is a member of the
University staff?
MR BENNETT:
I would submit it is simply defining the subject-matter.
One would not expect that the person
writing this letter had looked matters up and
investigated matters himself before answering or
formed any intention. All he was doing was describing
the subject-matter of their letter and saying, "We
are getting legal advice and we will let you know."
I will come to the meaning of the word "notify" in
a moment. And, of course, "staff" in any event does not mean "employee". Staff would include people
who are part-time, people who are on piece-work,
or could include anything. To say she is a member of staff does not bring her within section 3 as
an employee. I mean, we know in fact she was but that admission does not go far enough to constitute
the statement required even if it could otherwise
constitute a notification because staff is a wider
category than employee. These are technical answers
to a very technical submission.
The next one, Your Honours, is even more unlikely.
The second matter my friend relies on is the letter
at page 43. Now, this is a letter from the solicitor for the first defendant to the solicitor for the
second defendant about the litigation. It is a
conununication between solicitors for the two
defendants describing what apparently has been an
informal discovery between them for the purpose of
that litigation. It is addressed to the Principal
Legal Officer:
Your Reference: Ann Thomas We refer to your conference -
presumably Miss Thomas' conference - with Mr Terrett -
Your Honours will see he is the last name under
senior associates at the top and, no doubt, the person
sending the letter, because of the reference. So the solicitor for the University is saying, "I
refer to my conference with the solicitor handlingthe matter on behalf of the other defendant" and:
We confirm that, at the conference, we provided
you with photocopies of documents on the personnel file -
and they included certain matters, and -
C2T66/2/MB 113 2/3/89 Chopra(2) We note that you have agreed to provide us with a copy of an unreported decision -
which is relevant, and -
We look forward to receiving that.
(Continued on page 115)
| • |
C2T66/3/MB 114 2/3/89 Chopra(2)
MR BENNETT (continuing): It is a communication between solicitors for the defendant about the litigation.
One could not suggest that Miss Thomas, or for
that matter the principal legal officer, had
authority on behalf of the Superannuation Board to
receive notifications under scheduleXXI, nor thatMr Terrett had authority on behalf of the University
to give notifications under schedule XXI. It was
no t e i the r o f t he i r r o 1 e s . Th i s w a s no t h i n g rrore or less than informal discovery in the course of
litigation for the purposes of conducting the case
and, in my respectful submission, that certainly,
whatever the word "notify" means, cannot fall
within it.
May I now come to the meaning of the word
"notify". The schedule confers an election and in clause 2(1) it provides at page 28:
A person to whom this Schedule applies
may elect to contribute to the Fund if -
(a) ..... the employer of the person has
notified the Board that the person is an
employee; or -
the second date -
(i) the employer of the person notifies
the Board that the person is an employee; or
(ii) the person lodges at the office of the
Board a certificate signed by ..... his or
her employer stating that the person is an
employee.
Each of those three, the two notifications and the
certificate require, in my respectful submission, a degree of formality; not so much a formality as deliberateness. The purpose of this provision is to give the employer the right, or the election,
if one likes, to notify in relation to particular employees who have been outside the scheme who can
be brought within the scheme. The effect, of course, of bringing them within the scheme is that the
employer may have a substantial liability in relation
to them and the employer is given the right, during the dying days of the scheme when it is about to be firmly closed, to bring people it choses within the scheme. But, in my respectful submissin, it is not
saying, "If you are an employee you have some right
that your employer will do that or you are entitled
to find some hint somewhere given by your employerwhich suggests it" and rely on that as an election
by the employer, that is simply not the purpose of it
or the scheme of the legislation, and it would be
surprising if it were.
C2T67/l/HS 115 MR BENNETT, QC 2/3/89 Chopra(2) · If my friend were right in relation to that one
would have thought this would say, "If on or before
31 December a person satisfies the Board that he is
an employee and that he can bring such evidence as
is appropriate". Why, one asks, should the condition firmly be placed on the employer and
why should there be used the firm language
"certificate" and the fairly formal word "notify"
rather than something more informal. The answer
is that this was an election given to employers and,
if one thing is clear in this case, that election
was not exercised and one certainly cannot read
into the two matters that may amount to admissions
by the University that my learned friend has referred to,
"a notification by the employer".
Apart from anything else what is the Board supposed to do. One of the aims, one of the
functions of this legislation is to close the
scheme. That must be clear. These are amendments relating to closure. They are imposing
a final date on which the doors will finally clank
shut. Surely in laying down such legislation the one
thing which the parliament would be anxious to do is
to provide a measure a certainty. It would not provide a measure of certainty if the Board had to
ask its legal officer whether anyone had casually
admitted to it that someone was an employee. If theBoard had to ask all its staff to go through letters
and see if there is anything which refers to anyone
which might be taken as an admission that a person is
an employee, that is not what this is about. This is about the employer writing to the
Board saying, "For the purpose of the scheme
closure, we found these people who have not been in the scheme. We want them to be in it. We notify you they are employees", and then the schedule takes effect.
(Continued on page 117)
C2T67/2/HS 116 2/3/89 Chopra(2)
MR BENNETT (continuing): But here, if there is one thing that is clear, it is that the University of Newcastle
was not doing that. It, for reasons as to which
Your Honours have seen the merits, and Your Honours may have a view of the merits one way
or the other, in a sense, that does not matter.
But, the University of Newcastle had obviously taken
a view and that view was that it was not going to
assist Mrs Chopra to obtain admission to the
superannuation fund.
Now, in my respectful submission, it was
entitled to take that course and nothing that it did
amounted to a failure to take that course.
The final matter which supports the submission
that the employer had an election is this, that there
are numerous decisions, and some of them are referred
to in the various documents - I will not take
Your Honours to them - in which the courts have
discussed - there is one I think, in relation to
which there is a leave application before this Court
in a few weeks - but there area number of decisions
in which the courts have discussed the question of whena person comes within that elaborate definition of
"employee". And Your Honours will recall the last
words of that definition involve a person who is not
employed by piecework or weekly or fortnightly,
the idea·being to get people on annual salaries, not
people who are employed weekly or fortnightly.The current state of the authorities, subject to
the leave application before the Court, following an
unreported decision of the Court of Appeal in
CRIMINALE V STATE SUPERANNUATION BOARD, is that that is really a matter for the employer when he employs
the employee.
MASON CJ: What is this, a trailer of the special leave application, is it?
MR BENNETT: Your Honour, I am the respondent to the special
leave application. I am eiting the Court of Appeal as an authority in my favour, Your Honour, although
it is not on my list of authorities.
When the employer employs the employee, the
employer decides, in effect, whether the employee is
going to be treated as a permanent or a casual, or as
a weekly or annual employee by the way in which
it determines the salary. He says, "I will pay
you $500 a weel<: instead of saying, "I will pay you
$25,000 a year".
C2T68/l/JH
Chopra(2) 117 2/3/89
MR BENNETT (continuing): The relevance of that is that it indicates that part of this whole scheme is that
employers do have a measure of discretion. There is
nothing surprising about the fact that it is open to
an employer, within certain limits, to ensure that
some people employed by it are not within the category
of those who subscribe under this legislation. And one manifestation of that, we would submit, is the
conferring of the election on employers in schedule 21,
and that was one of the reasons for the use of words
like "notify" and "certify" rather than words of a
more informal nature. For those reasons, we would
respectfully submit the appeal should be allowed.
The final matter is, in relation to the forms
of orders, we would respectfully direct Your Honours'
attention to the forms in which the Court of Appeal
has made declarations because if Your Honours' views
are affected by the question Your Honour Justice Brennan
first asked me this morning in relation to section 27
and following and how that fits in, it may well be
that the form of any declarations made, if
Your Honours are in whole or in part against me, may
be affected by Your Honours' views on that question,
and I therefore simply direct Your Honours' attention
to the precise form of the declaration in relation to
whether it is merely that she is a contributor or whether it is that certain consequences flow from
her being a contributor. May it please the Court.
MASON CJ: Thank you, Mr Bennett. Yes, Mr Handley.
MR HANDLEY:
Your Honours, there is only one or two fairly brief points I seek to make in reply in addition to
those made by my learned friend, Mr Bennett. Could I ask Your Honours to look at section 11A(2) again in Sir Maurice Byers' photocopy reprint as at 1971 because I do not think the Court's attention has been specifically directed to the last six lines of 11A(2)? The language of those six lines is rather curious. Perhaps there is a misprint or a slip on the part of
Parliament in the reference to (c). (Continued on page 119)
C2T69/l/BR 118 2/3/89 Chopra(2)
MR HANDLEY (continuing); But nothing that has happened, nothing that is referred to in subsection (2)
and (a), (b) and (c), covers outright acceptance
as a full contributor, refusal in (a), limited
acceptance (b), postpone acceptance (c) and
then the next words follow:
An employee accepted as a contributor -
and they are not speaking there as a contributor
for limited benefits because they go on to say -
or as a contributor for limited benefits -
so there are two forms of acceptance being referred
to there, full acceptance or a limited acceptance.
The reference to "pursuant to paragraph (c)"
seems to be - - -
MASON CJ: "(b)", it should be, presumably.
MR HANDLEY:
Presumably it should be (b) because although (c) contemplates a possibility of an acceptance
it is a future possibility and the only decision
referred to in (c) is actually a decision topostpone. So, in our respectful submission, 11A(2) contemplates four decisions on the part of the Board. Apart from the three mentioned in (a), (b) and (c) there is also complete
acceptance which is referred to in the closing
language.
MASON CJ: What does this lead to, Mr Handley?
MR HANDLEY: It leads to the point that I think was being
discussed by Mr Justice Dawson that non-acceptance -
there is no provision for a. decision to accept,
that flows from the Act, in the absence of a
decison to refuse, limit or postpone, and, in our submission, what 11A(2) is speaking about
is yet another decision, a decision to accept,
because it goes on, in the third-last line, to identify the period in which contributions
shall commence by reference to the period in
which he is accepted and contemplates that the
Board may vary the statutory prescription in
special circumstances.
BRENNAN J: Why is that not just a provision which comes
in after paragraph (c) to deal with the termination
of the postponement?
C2T7O/l /ND 119 2/3/89 Chopra(2)
MR HANDLEY:
Is Your Honour putting to me that the last six lines are, as it were, a flow-on from (c)?
BRENNAN J: Yes. MR HANDLEY: There is a fulL stop after "determines", Your Honour.
BRENNAN J: Of course, but then the words which appear in
the first two lines are ip sissima verba from (c).MR HANDLEY: Well, against that, Your Honour, I would merely point to the fact that the language of (c) from
"postpone" to the full st9p,doesnot refer to anydecision other than a decision to postpone. And,
one cannot say that a person is accepted, pursuant
to paragraph (c) in any ordinary sense of the
language. So, in our submission, that contemplates a decision to accept in the ordinary case and I
would follow that up in dealing with the point that
Mr Justice Dawson was making that there is no
statutory power to decide to not accept, as
distinct from refusing, and the reference to "not
accept" in the 1977 legislation refers to the
absence of a decision or, as it were, the absence of
anything connoting an acceptance and not to a
decision involving a decision not to accept.
Your Honours remember that the words "person not
accepted" - in our submission, one can determine that
by just looking at the facts without having to
postulate that there is any decision of the Board
not to accept.
(Continued on page 121)
C2T71/l/JH 120 2/3/89 Chopra(2)
MR HANDLEY (continuing): Your Honours, just by way of addition to what fell from my learned friend,
Mr Bennett, in relation to the way in which the
definition of "contributor" in the 1977 amendments
interacts with section 11A(2) and section lOH,
first of all, could I point out to where the
commencement of these provisions is laid down in
the statute. My friend, Mr Bennett, said they commenced on 13 January and that appears on
page 468 of our legislation book in section 2(3.). That
refers to schedule 2 and that picks up all these
relevant amendments as commencing on 13 January.Then, Your Honours, the point put against us by
Sir Maurice in relation to the definition of
"contributor" is that paragraph (b) of the definition:
An employee while rejected or not accepted -
as it were, covers the same ground as 11A(2). They both cover the same field, as it were and, in our
submission, my learned friend, Mr Bennett's reference
to lOH destroys that supposed symmetry and leavesthe words "not accepted as a contributor under this Act as enforces any time before 13 January 1977" as
apt to pick up cases like Mrs Chopra.
BRENNAN J: The curious thing is that somebody might start to
have deductions made from his salary, then go for a
medical examination and then have his acceptance
postponed, is tPat right?
MR HANDLEY: Your Honours, whether in practice that ever happens or ever happened may be doubtful, drawing
on knowledge from other cases.
BRENNEN J: v.Jhat, because the examination always took place first?
MR HANDLEY: No, Your Honour. The deductions did not occur until after the examination.
(Continued on page 122)
C2T72/l/SH 121 2/3/89 Chopra(2) BRENN.AN J: Yes.
MR HANDLEY But my knowledge may not be in any
way universal. My friend, Mr Wright and I, were aware of a case where deductions did not commence
although employment had commenced,but, apparently
there are other cases where deductions did commence
although a medical still had not been held.
Your Honours,my learned friend, Sir Maurice Byers,
suggested that the first 1985 Act never came into
force. Well, it certainly was repealed with
retrospective effect but, Your Honours, it was in
force for a period of some six months before
being retrospectively repealed and, therefore it
can be used firstly in the way that Mr Justice Yeldham
used it, that "employee" does not mean "contributor."
Also in the way that Mr Bennett used it to show an
ambiguity which was resolved by the second 1985 Act.
Your Honours, the history of the commencement of that
legislation - at 675 in our book the:
"Prescribed day" means the day appointed and
notified under section 2(3) of the STATE
PUBLIC SERVICE SUPERANNUATION ACT.
This Act came into force on 30 April on the Rpyal assent.
There was no provision for postponing it and the
date on which the STATE PUBLIC SERVICE SUPERANNUATION
ACT commenced was 1 May. Then it was repealed with effect from 1 July by the second Act of 1985 which commenced on the Royal asset, page 678:
Assented to 28th November.
And section 2(1) on 679:
deemed to have commenced on 1 July.
So the first Act was in force between 30 April and
1 July and has remained in force in that period but
was also in force until 28 November until, in that
respect, retrospectively repealed as from 1 July.
(Continued on page 123)
C2T73/l/VH 122 MR HANDLEY, QC 2/3/89 Chodra(2) MR HANDLEY (continuing): Only two remaining points we would
wish to make, Your Honours: one relates to section 11. We would submit clearly section 11
imposes on employees a clear statutory duty to
contribute. We acknowledge, of course, that is contribute by deduction but nevertheless there
is a duty imposed on the employee. Going to section 19, on which Sir Maurice placed much reliance, in our
submission, that cannot be used to expand the
definition of "contributor" and it speaks of a
contributor in section 19(1), and a person could
clearly be a contributor who has been contributing
but may nevertheless fail during a period of some leave
to make a contribution without thereby ceasing to be
a contributor. They are our submissions, if the Court pleases.
MASON CJ: Thank you, Mr Handley. The Court will consider its decision in this matter and adjourn until 10.15 am
tomorrow.
AT 3.57 PM THE MATTER WAS ADJOURNED SINE DIE
C2T74/l/BR 123 2/3/89 Chopra(2)
- AGLC
- University of Newcastle v Chopra & Anor; State Authorities Superannuation Board v Chopra [1989] HCATrans 41
- Case
- [1989] HCATrans 41
- Decision Date
CaseChat Overview and Summary
The High Court was required to determine whether Mrs Chopra was a contributor to the State Authorities Superannuation Scheme, and consequently, whether she was entitled to benefits under that scheme. This involved interpreting the relevant provisions of the Superannuation Act 1916 (NSW) and the State Authorities Superannuation Act 1987 (NSW), particularly in relation to the conditions of her employment at the University of Newcastle and her actions regarding superannuation contributions.
The Court's reasoning focused on the statutory construction of the superannuation legislation. It examined the circumstances of Mrs Chopra's appointment in 1968, which was conditional on a medical examination to determine her eligibility to contribute to the scheme. Although she was recommended for acceptance for permanent appointment and limited benefits, the University advised her that she would need to apply for exemption from the scheme if she did not wish to contribute. An internal university memorandum from 1978 noted that Mrs Chopra had apparently indicated at the time of her appointment that she did not wish to contribute, and that an exemption was necessary. The Court considered whether these events, and the subsequent legislative changes, established her status as a contributor or an exempted person.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.