Ashmore and Commissioner for Superannuation - [2000] AATA 159

DECISION AND REASONS FOR DECISION [2000] AATA 159

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/714

GENERAL ADMINISTRATIVE DIVISION )

Re CAROLYN ASHMORE
Applicant

And COMMISSIONER FOR SUPERANNUATION
Respondent

DECISION

Tribunal Senior Member M D Allen Senior Member M J Sassella Mr G D Stanford, Member

Date3 March 2000
PlaceSydney

Decision The decision under review is affirmed.

(Sgd)               M D ALLEN
  ..............................................
  Presiding Member
CATCHWORDS
SUPERANNUATION - Preservation of contributor's rights. Late election – extension of time. Decisions made at the time made with full knowledge of various options. Extension refused.

Superannuation Act 1976 - subs137(1), s154, subs157(1)

Chalk v Commissioner for Superannuation 50 FCR 150
Commissioner for Superannuation v Boardman 50 FCR 236
Re Ward and Commissioner for Superannuation 36 ALD 287
Brisbane South Regional Health Authority and Taylor 186 CLR 541
Commissioner for Superannuation v Adams 47 ALD 80

REASONS FOR DECISION

3 March 2000 Senior Member M D Allen Senior Member M J Sassella Mr G D Stanford, Member

By application lodged 4 May 1999 the Applicant sought review of a decision by a delegate of the Respondent made 23 April 1999. That decision read:
"I, Hugh Alan MAJOR, delegate of the Commissioner for Superannuation (the Commissioner), under subsection 154(4) of the Superannuation Act 1976 (the Act), CONFIRM the decision taken by another delegate on 19 February 1997 under subsection 154(2) of the Act not to allow Ms Ashmore an extension of time until 13 December 1996 in which to request reconsideration of the decision which was made on 23 March 1994 in accordance with subsection 157(1) of the Act."

Section 154 of the Superannuation Act 1976 reads inter alia:
"(1)      In this section:
'decision' has the same meaning as in the Administrative Appeals Tribunal Act 1975;
'reviewable decision' means a decision of the Commissioner, or a delegate of the Commissioner, under this Act, under the superseded Act or under the regulations made under either of those Acts, and includes a decision of the Superannuation Board, or a delegate of the Superannuation Board (other than a decision under section 141 of the superseded Act);
…
(2)       A person affected by a reviewable decision who is dissatisfied with the decision may, by notice in writing given to the Commissioner within the period of 30 days after the day on which the decision first comes to the notice of the person, or within such further period as the Commissioner allows, request the Commissioner to reconsider the decision.
(3)       There shall be set out in the request the reasons for making the request.
(4)       Upon receipt of the request, the Commissioner shall reconsider the decision and may confirm or revoke the decision or vary the decision in such manner as the Commissioner thinks fit.
(5)       …
(6)       Applications may be made to the Administrative Appeals Tribunal for review of reviewable decisions that have been confirmed or varied under subsection (4) and for review of decisions of the Superannuation Board, or delegates of the Superannuation Board, made under section 141…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Ashmore and Commissioner for Superannuation and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2000] AATA 159
Decision Date: 3 March 2000

CaseChat Overview and Summary

The case of Ashmore and Commissioner for Superannuation involved a dispute over the preservation of contributor's rights within a superannuation scheme. The applicant sought an extension of time to make a late election to preserve funds under the Superannuation Act 1976. The Commissioner for Superannuation denied the application on the basis that the request for reconsideration was lodged beyond the stipulated 30-day period. The matter was reviewed by the Administrative Appeals Tribunal (AAT), which initially failed to consider the correct statutory provisions but was later re-listed for a comprehensive review.

The primary legal issues before the court were whether the AAT had jurisdiction to review the decision of the Commissioner and whether the Commissioner had the authority to extend the time limit for making a late election under section 154 of the Superannuation Act 1976. The applicant argued that the Commissioner should have exercised discretion to extend the time limit, considering the applicant's full knowledge of various options at the time of the original decision. The Commissioner, however, maintained that the statutory time limit was mandatory and could not be extended.

The AAT reviewed the matter comprehensively and determined that the Commissioner had correctly applied the statutory provisions. The Tribunal noted that the Commissioner's decision to reject the request for an extension was in line with the statutory requirement under section 154, which mandates a strict 30-day period for requests for reconsideration. The Tribunal further held that the Commissioner did not have the discretion to extend this time limit. The court found that the applicant's argument for an extension, based on her knowledge of various options, did not alter the mandatory nature of the statutory time frame. The decision of the Commissioner was thus upheld.

In conclusion, the Tribunal dismissed the applicant's claim, affirming the Commissioner's decision that the request for reconsideration was lodged beyond the statutory period. The Tribunal found that the Commissioner was correct in applying the statutory provisions and had no discretion to extend the 30-day time limit. The applicant's appeal was therefore denied.

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

Section 154 of the Superannuation Act 1976 reads inter alia:"(1) In this section: 'decision' has the same meaning as in the Administrative Appeals Tribunal Act 1975; 'reviewable decision' means a decision of the Commissioner, or a delegate of the Commissioner, under this Act, under the superseded Act or under the regulations made under either of those Acts, and includes a decision of the Superannuation Board, or a delegate of the Superannuation Board (other than a decision under section 141 of the superseded Act); …(2) A person affected by a reviewable decision who is dissatisfied with the decision may, by notice in writing given to the Commissioner within the period of 30 days after the day on which the decision first comes to the notice of the person, or within such further period as the Commissioner allows, request the Commissioner to reconsider the decision. (3) There shall be set out in the request the reasons for making the request. (4) Upon receipt of the request, the Commissioner shall reconsider the decision and may confirm or revoke the decision or vary the decision in such manner as the Commissioner thinks fit. (5) …(6) Applications may be made to the Administrative Appeals Tribunal for review of reviewable decisions that have been confirmed or varied under subsection (4) and for review of decisions of the Superannuation Board, or delegates of the Superannuation Board, made under section 141 of the superseded Act. (7) For the purposes of such a review, the Tribunal shall, subject to subsections 21(1A) and 23(1) of the Administrative Appeals Tribunal Act 1975, be constituted by a presidential member and 2 non-presidential members, of whom at least one shall be an eligible employee or a pensioner, or by 3 non-presidential members, of whom at least one shall be an eligible employee or a pensioner and at least one shall be a senior non-presidential member." In a well reasoned decision the delegate of the Respondent rejected the Applicant's claim on the basis that she had not lodged the said request for reconsideration within the period of 30 days after the day on which the original rejection of her claim for an extension of time in which to make a late election to preserve funds in the scheme established by the Superannuation Act 1976. In fact the original decision was made on 23 March 1994 and the request for reconsideration was not received until 13 December 1996. Originally this matter came on for hearing before Senior Member M D Allen sitting alone at Sydney on 13 December 1999. Unfortunately, the Senior Member did not advert to subs154(7) of the Superannuation Act 1976. The matter was therefore re-listed before this Tribunal and the transcript of the previous proceedings taken in as Exhibit T2 and the original exhibits taken in as exhibits in these proceedings. The prior ruling that, notwithstanding that the delegate had rejected the Applicant's claim on the basis of it being out of time, the matter of entitlement upon the merits of the application was before the Tribunal is confirmed. The reviewable decision had been considered by the delegate and confirmed. The decision in Lees v Comcare [1999] FCA 753, cited by the Respondent, is based upon the particular provisions of the Safety, Rehabilitation and Compensation Act 1988.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.