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Cancer victim wins fight over withheld super

Cancer victim wins fight over withheld super

Date: December 7, 2012
Louis Andrews

A former public servant has won his legal fight against the Commonwealth government for withholding his super for more than a decade.

Marty Guy’s victory came after years of waiting, and five similar cases remain on foot before the ACT Supreme Court.

But the 72-year-old Queanbeyan man could not be in court for the news – he was at the doctor’s surgery.
Mr Guy has been diagnosed with stage-four prostate cancer, and the court has previously heard his prognosis was ”likely to be measured in months, rather than many years”.

His solicitor, Richard Faulks, called Mr Guy at the surgery with word of the Thursday’s unexpected verdict.
”It’s nice that he’s finally got some recognition of the wrong that was done to him so many years ago,” Mr Faulks said. ”Now we have to move quickly towards finalising the matter so he can get some financial security while he can still enjoy it.”

Mr Guy sued the Commonwealth of Australia for negligently excluding him from its superannuation scheme for more than a decade. The Queanbeyan man worked for the Department of Administrative Services for about 16 years but was initially told he could not join the scheme as a temporary worker.
But more than a decade later, in 1996, he was told he was in fact eligible.

Justice Richard Refshauge heard the six cases together in 2009 and 2010 before reserving judgment.
Mr Guy’s legal team, from Snedden Hall & Gallop, asked for the matter to be brought back before the judge on Thursday in the hopes of expediting a decision. ”The latest [prostate cancer] testing showed quite a significant increase,” Mr Faulks told the judge. ”All I can tell you is the prognosis is pretty poor.”

Justice Refshauge said while the matter had not been resolved as quickly as the plaintiff hoped, he intended to award judgment to Mr Guy. ”I’ve formed a clear view that there should be judgment for the plaintiff, I’m still struggling with the quantum [amount of damages] at the moment,” he said.

The judge formally ruled in favour of Mr Guy but adjourned the case so he could finish writing out his reasons and determining the final payout. ”I’m sorry it can’t be more than that, it’s just that the pressure of work means I haven’t been able to do that,” Justice Refshauge said.
”It’s unfortunate and it’s a stepped approach, but it’s the best I can do at the moment.”

The Commonwealth will have 28 days to appeal the decision after the formal reasons are handed down.
Mr Guy could not be reached for comment on Thursday afternoon.

But in July he told The Canberra Times he thought the eventual decision would answer a lot of questions for other former public servants in a similar situation.
”I know there’s a lot of people just sitting on the fence out there,” he said.

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