Ashmore v Commissioner for Superannuation [2000] FCA 1816
ADMINISTRATIVE LAW – superannuation – late election to preserve benefits in Commonwealth Superannuation Scheme – decision not to recognise late election – decision not to grant extension of time in which to request reconsideration of late election decision – jurisdiction of Administrative Appeals Tribunal under s 154 of Superannuation Act 1976 (Cth) – procedural fairness – Tribunal reconstituted with three members after hearing before one member at which applicant gave oral evidence – one but not the other two members observed applicant’s demeanour – applicant’s oral evidence rejected – whether Tribunal was obliged to recall applicant to observe her give oral evidence – error of law – whether Tribunal was obliged to consider prejudice caused by not allowing extension of time
[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.
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AGLC
Ashmore v Commissioner for Superannuation [2000] FCA 1816
Case
[2000] FCA 1816
Decision Date
CaseChat Overview and Summary
The case of Ashmore v Commissioner for Superannuation involves an appeal and a cross-appeal against decisions made by the Administrative Appeals Tribunal on 3 March 2000. The Tribunal had affirmed decisions by the Commissioner for Superannuation not to recognise a late election by the applicant to preserve her benefits under the Commonwealth Superannuation Scheme and not to allow an extension of time to request reconsideration of the late election decision. The central legal issues were whether the Tribunal had jurisdiction to review the original late election decision and whether the Tribunal erred in not recalling the applicant to give evidence. The respondent argued that the Tribunal’s jurisdiction was limited to reviewing the extension of time decision, as the late election decision had not been reconsidered under the Superannuation Act. The applicant contended that the respondent’s delegates had effectively reconsidered the late election decision in their decisions on the extension of time request, thus fulfilling the legislative purpose. The court found that the Tribunal did not have jurisdiction to review the original late election decision, as it had not been reconsidered by the respondent. The court also rejected the applicant’s argument that the respondent’s delegates had implicitly reconsidered the late election decision. The court ordered that the Tribunal’s decisions be set aside, the matter be remitted to the Tribunal for redetermination, and the respondent pay the applicant’s costs of the appeal.
Orders
Orders of the court
1. The decision of the Administrative Appeals Tribunal of 3 March 2000 be set aside in its entirety.
2. The matter be remitted to the Tribunal differently constituted to be determined according to law.
3. The respondent pay the applicant’s costs of the appeal.
Background
Background to the litigation
This matter involves an appeal and a cross-appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) from decisions of the Administrative Appeals Tribunal (“the Tribunal”) (constituted by three members) made on 3 March 2000. The Tribunal appears to have made two decisions. One was a decision (“the Tribunal’s late election decision”) affirming a decision of a delegate of the respondent not to recognise, under s 157(1) of the Superannuation Act 1976 (Cth) (“the Superannuation Act”), a late election by the applicant to preserve her benefits in the Commonwealth Superannuation Scheme. The other decision of the Tribunal (“the Tribunal’s extension of time decision”) was a decision affirming a decision of a delegate of the respondent under s 154(2) of the Superannuation Act not to allow the applicant a “further period” beyond 30 days in which to request reconsideration of the late election decision. The cross-appeal puts in issue whether the Tribunal had jurisdiction to review the original late election decision leading to the Tribunal’s late election decision.The factual and legislative background The decisions to which these proceedings relate concern the steps that may be taken by a person to preserve benefits under the superannuation scheme created by the Superannuation Act for, relevantly, members of the Australian (or Commonwealth) Public Service when the person ceases to be a member of the Service. Of central importance is the time in which those steps are to be taken and further steps taken to review decisions made under the Superannuation Act. Part IX of the Superannuation Act concerns the preservation of rights of certain eligible employees and Division 3 of that Part concerns the preservation of rights of people who cease to be eligible employees. A person who ceases to be an eligible employee may make an election under s 137 by giving written notice of the election to the respondent no later than 21 days after the person ceases to be an eligible employee. The election is that Division 3 apply. However s 157 enables the respondent to recognize an election made by a person after the expiration of the specified period. In addition, s 154 provides a mechanism for the review of a reviewable decision of the respondent. The terms of the section are set out later. The review is to be sought by notice in writing given within the period of 30 days after the day on which the decision first comes to the notice of the person affected by the decision: see s 154(2). However s 154(2) also provides that the respondent may allow a further period (beyond the 30 days) to give notice seeking a review. If a notice is given conformable with these provisions the respondent is obliged to reconsider the decision in question and confirm, revoke or vary the decision: see s 154(4). Any decision which is confirmed or varied can, itself, be reviewed, on application, by the Tribunal: see s 154(6). These provisions became relevant to the applicant in the following circumstances. In 1968, the applicant commenced employment in the Commonwealth Public Service. On 1 July 1976, when the Superannuation Act commenced operation, she became a member of the Commonwealth Superannuation Scheme. In April 1988, she was offered employment in the private sector. She accepted this offer and resigned from the Commonwealth Public Service with effect from 1 June 1988. On 19 July 1988, she applied for a refund of her contributions to the Commonwealth Superannuation Scheme by signing a “Form S2R”. On 8 August 1988, an amount of $30,220 (representing a refund of her contributions and interest) was paid into an approved deposit fund nominated by the applicant.
Evidence
Evidence Before The Court
In my opinion, the Tribunal did not have jurisdiction to review the original late election decision. The Tribunal’s jurisdiction was limited to reviewing the original extension of time decision. Accordingly, the respondent succeeds in its cross-appeal.The failure of the Tribunal to recall the applicant to give evidence I next consider the ground of the applicant’s appeal which raises the failure of the Tribunal to recall the applicant to give evidence. This ground is expressed in the notice of appeal as follows:“4.1 That the Tribunal erred in law in determining the matter on the transcript of the proceedings before [the Senior Member] sitting alone on 13 December 1999 and the evidence tendered on that date, in circumstances where the Tribunal based its decision on findings that it did not accept the Applicant’s evidence that:(a)at the time of resigning from the Commonwealth Public Service, the Applicant did not understand the concept of “preservation”; and(b)the Applicant was misled by advice she received from Mr Phillip Thompson”.The circumstances in which this occurred are then particularized. The following is an agreed account of what was said during the telephone directions hearing on 16 December 1999. After the Senior Member proposed that the matter be heard by a reconvened three-member Tribunal with the transcript of the previous hearing before it, counsel for the applicant said words to the following effect:“There is authority for the proposition that a matter should only proceed on the basis of transcript if there are no questions of credit arising.”Reference was made to McCormack v Federal Commissioner of Taxation (1979) 143 CLR 284 (“McCormack”). The Senior Member replied with words to the following effect:“Matters of this kind inevitably involve an assessment of credit.”There was then discussion between the Senior Member and counsel for the applicant, at the end of which counsel for the applicant said words to the following effect:“This may not be a problem if issues of credit only arise out of the documents but I would need to get instructions.”Counsel for the respondent then indicated that it wished to proceed on the basis of the transcript and if the applicant had objections to that course, the respondent would want an opportunity to test those objections at a directions hearing. The Senior Member replied with words to the following effect:“If the applicant objects to proceeding on the basis of transcript then a new hearing will be arranged. I do not want to risk an appeal.”The Tribunal then adjourned on the basis that the applicant would advise the Tribunal and the respondent of its response to the Senior Member’s proposal. On 16 December 1999, the solicitor for the applicant wrote to the Senior Member in the following terms:“We refer to the telephone conference held this morning.We are instructed that, in the circumstances, the Applicant is prepared to have this matter proceed on the basis that:1.the Tribunal is reconstituted as a 3 member Tribunal;2.the Tribunal make its determination upon the evidence tendered at the hearing on 13 December 1999 and upon the transcript of the hearing on that date.The Applicant is conscious that 2 of the members of the reconstituted Tribunal will not have had the benefit of seeing her give evidence. We are instructed that should the Tribunal form the view that it is appropriate that the Applicant be recalled to answer any questions the Tribunal has, she will make herself available for this purpose.”(Emphasis added.)
Decision
Reasons for decision
MOORE J
Section 154 of the Superannuation Act relevantly provides:(1)In this section: …‘reviewable decision’ means a decision of the Commissioner, or a delegate of the Commissioner, under this 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. …(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. …(6)Applications may be made to the Administrative Appeals Tribunal for review of reviewable decisions that have been confirmed or varied under subsection (4) … However, the parties’ submissions diverged on two points. The first point concerned the scope and operation of s 154. The respondent submitted that the original late election decision has not been reconsidered by the respondent under s 154(4) and thus the applicant could not apply for review of that decision to the Tribunal under s 154(6). Accordingly, the Tribunal would not have jurisdiction under s 25(4) of the AAT Act to review that decision. The respondent submitted that s 154 establishes a “particularised review procedure” consisting of a “three-tiered process of decision-making”: Comcare v Burton (1998) 157 ALR 522 at 525. Those tiers are, firstly, a primary decision by the respondent, secondly, a reconsideration of that decision by the respondent (s 154(2)) leading to confirmation, revocation or variation of the primary decision (s 154(4)), and thirdly, review of the primary decision by the Tribunal (s 154(6)). It was submitted that to construe s 154 so as to permit the applicant to by-pass the second tier would be to defeat the legislative purpose of s 154: Repatriation Commission v Stafford (1995) 38 ALD 193 at 203. The applicant conceded, correctly, that there is no formal “second tier” decision of the respondent which reconsiders and either confirms, revokes or varies the late election decision. However, it was submitted that, in making the decisions dated 19 February 1997 and 23 April 1999, the respondent’s delegates considered the merits of the late election request and concluded that its prospects of acceptance were poor. It was submitted that the legislative purpose of s 154 has thereby been fulfilled. Sub-section 154(6) of the Superannuation Act is plainly an “enactment” of the type contemplated by s 25(1) and (4) of the AAT Act. Accordingly, power is conferred on the Tribunal by s 25(4) to determine applications made under s 154(6). Sub-section 154(6) permits applications to be made to the Tribunal for review of decisions of the respondent “that have been confirmed or varied under subsection (4)” (emphasis added). The late election decision, made on 23 March 1994, was not such a decision. It is true that the delegates of the respondent, in their decisions of 19 February 1997 and 23 April 1999, took into account the merits of the applicant’s request for her late election to be recognised. However, that does not mean the delegates reconsidered, confirmed, revoked or varied, under s 154(4), the late election decision. The decisions (set out in pars 10 and 11 above), in terms, deal with the applicant’s request for an extension of time, under s 154(2), to request reconsideration of the late election decision. The application to the Tribunal nominated the extension of time decision as the decision of which review was sought (strictly the 19 February 1997 decision, rather than the 23 April 1999 decision, was the “reviewable decision” under s 154(6) – though nothing turns on that in these proceedings). The Tribunal may well have formed the opinion that, in view of the time that had elapsed since the applicant ceased to be an eligible employee, the most practical course was to deal finally with the substantive issue concerning the late election. Nevertheless, the Tribunal was not empowered by s 25 and s 154(6) to do so. There is nothing in s 154 or in any other provision to which the applicant has referred which discloses a legislative intention to confer on the Tribunal a power to review decisions that had not been reconsidered and confirmed or varied under s 154(4).