Commonwealth Consolidated Acts Commonwealth Consolidated ActsCourt may relieve liability for misconduct
(1) If, in a civil proceeding against a superannuation official for official misconduct in a capacity as such a person, it appears to the court that the official is or may be liable in respect of the official misconduct, the court may, if subsection (2) is satisfied, relieve the official either wholly or partly from the liability, on such terms as the court thinks fit.
Basis for granting relief
(2) The court may only relieve the official from the liability if it appears to the court that:
(a) the official has acted honestly; and
(b) having regard to all the circumstances of the case, including those connected with the official's appointment, he or she ought fairly to be excused for the official misconduct.
Withdrawal of case from jury
(3) If:
(a) the case is being tried by a judge with a jury; and
(b) after hearing the evidence, the judge is satisfied that relief ought to be given under subsection (1);
the judge may withdraw the case in whole or in part from the jury and immediately direct judgement to be entered for the superannuation official on such terms as to costs or otherwise as the judge thinks proper.
Where claim yet to be made
(4) If a superannuation official has reason to believe that a claim will or might be made against the official in respect of any official misconduct in a capacity as such a person:
(a) the official may apply to the Court for relief; and
(b) the Court has the same power to grant relief as it would have under subsection (1) if it had been a court before which proceedings against the official for official misconduct had been brought.
(5) In this section:
"officer" , in relation to a corporate trustee, means:
(a) a responsible officer or employee of the corporate trustee; or
(b) a receiver, or receiver and manager, of property of the body, where the property is beneficially owned by the corporate trustee; or
(c) an administrator of the corporate trustee; or
(d) a liquidator or provisional liquidator of the corporate trustee; or
(e) a trustee or other person administering a compromise or arrangement made between the corporate trustee and another person or other persons.
"official misconduct" means negligence, default, breach of trust or breach of duty.
"superannuation official" means:
(a) a trustee of a superannuation entity; or
(b) an officer of a corporate trustee of a superannuation entity; or
(c) an auditor of a superannuation entity; or
(d) an actuary of a superannuation entity.
Special meaning of employee
(6) The meaning of the expression employee , when used in this section, is to be determined as if subsections 12(3) and (8) of the Superannuation Guarantee (Administration) Act 1992 had not been enacted. (Those subsections deem certain contractors to be employees.)