Buck and Commonwealth Superannuation Corporation - [2019] AATA 4548

Buck and Commonwealth Superannuation Corporation [2019] AATA 4548 (31 October 2019)

Division: GENERAL DIVISION

File Number: 2018/1595
Re:Maureen Buck
APPLICANT

AndCommonwealth Superannuation Corporation
RESPONDENT

DECISION

Tribunal:Deputy President S A Forgie
Date of decision: 31 October 2019
Place:Melbourne

The Tribunal decides to affirm the decision made by the respondent dated 14 August 2017 and affirmed on 27 February 2018 to refuse to extend the prescribed period of 30 days within which the applicant might request review of its decision dated 11 February 1986.

[sgd]....................................................................

Deputy President S A Forgie

Catchwords

SUPERANNUATION – application for an extension of time within which to seek review of decision by the Commissioner of Superannuation – whether a ‘spouse’ under s 3(1) of the Superannuation Act 1976 – whether eligible under s 3(2) – whether acceptable explanation for delay – whether there are prospects of success – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975, ss 37, 42B

Family Law Act 1985; s 82, 87

Federal Court Act 1976; s31A

Superannuation Act 1976; ss 3(1) and (2), 17, 27, 40, 41, 82, 109, 154

Superannuation Legislation (Consequential Amendments and Transitional Provisions) Act 2011; s 3; Schedule 2, Item 15(7)

Cases

Alcoa of Australia Retirement Plan Pty Ltd v Frost [2010] HCA 36; (2010) 242 CLR 254; 271 ALR 236

Australian Broadcasting Tribunal v Bond Corporation Holdings Ltd & Ors [1989] FCA 44

Budd v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1540

Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408

Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441; 119 ALR 85; 18 AAR 366

Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60; 46 FLR 409

Finch v Telstra Super Pty Ltd [2010] HCA 36; (2010) 242 CLR 254; 271 ALR 236

Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479; 64 ALJR 458

Hawkesley v May [1956] 1 QB 304; [1955] 3 WLR 569

Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment [1984] FCA 176; (1984) 3 FCR 344; 58 ALR 305; 7 ALD 315

Karger v Paul [1984] VicRp 13; [1984] VR 161

Pearce v Hornsey (1991) 29 FCR 239
Phillips v Australian Girls’ Choir Pty Ltd & Anor [2001] FMCA 109

Segelov v Young Services Pty Ltd [2015] NSWCA 156; (2015) 89 NSWLR 431

Secondary Materials

Jacob’s Law of Trusts in Australia

REASONS FOR DECISION

Deputy President S A Forgie

Mr Empson and Ms Buck[1] were married in 1969 and had three children. Mr Empson was a qualified chartered accountant and a permanent employee of Australia Post when he joined the Commonwealth Superannuation Scheme (CSS) on 27 July 1977. That fund, which was established under the Superannuation Act 1976 (Superannuation Act) was then administered by the Commissioner for Superannuation (Commissioner) but now by the Commonwealth Superannuation Corporation (CSC).[2] As a permanent employee, Mr Empson was also an “eligible employee”.[3]

[1] Ms Buck was known as “Mrs Empson” in the relevant documents but, unless quoting from those documents, I will refer to her by the name she is now known by.

[2] Unless otherwise noted, I will refer to the Commissioner for Superannuation, as that is the statutory office that had been established at the relevant time.

[3] Superannuation Act; s 3(1), paragraph (b) of the definition of “eligible employee”

For reasons I will come to, Mr Empson and Ms Buck separated in 1984. Orders were made in the Family Court of Australia (Family Court) regarding the maintenance of the children, the sale of the matrimonial home and associated matters. Mr Empson committed suicide on 5 July 1985. Following correspondence with Mr Empson’s executor, who was a solicitor with Kiddle, Briggs and Willcox, and the provision of Statutory Declarations by Ms Buck, the Commissioner decided that the children were eligible for benefits under the CSS. The Commissioner decided that Ms Buck was not eligible on the basis that, although married to Mr Empson, she was not living with him and was not wholly or substantially dependent upon him. In a letter dated 11 February 1986, the Commissioner advised Kiddle, Briggs and Willcox of that decision.
On 23 February 2017, Ms Buck asked the CSC to review the Commissioner’s decision dated 25 September 1985 that, as she was divorced from Mr Empson at the time of his death, she did not have an entitlement to a benefit under the provisions of the Superannuation Act.The Commissioner had made that decision on the basis of advice from the executor, who corrected the information regarding Ms Buck’s marital status. On 11 February 1986, the Commissioner decided that, on the evidence he had, Ms Buck did not meet the requirements of s 3(1). In a decision dated 14 August 2017, the CSC refused to extend the time within which Ms Buck might seek review of the Commissioner’s decision dated 11 February 1986 to refuse to accept her claim for benefits. It affirmed that decision in a further decision dated 27 February 2018. I have decided to affirm the decision made by the CSC on 14 August 2017 and affirmed on 27 February 2018 to refuse to extend the prescribed period of 30 days within which she might request review of a decision dated 11 February 1986.
OUTLINE OF THE SUBMISSIONS
On behalf of Ms Buck, Mr Donald of counsel submitted that the Commissioner had been in breach of his’s duty to bring to Ms Buck’s attention that she could claim a benefit under the Superannuation Act by satisfying the eligibility requirement in s 3(2). In the alternative, Mr Donald submitted that the Commissioner had failed to assess adequately Ms Buck’s entitlement as he was not aware of the circumstances surrounding her decision to separate from her husband. Her lack of awareness of her rights to claim a benefit was not acknowledged on review and nor was the heavy duty that is placed upon the CSC to ensure that she was aware of her rights to claim benefits.

On behalf of the CSC, Ms Kay of counsel made detailed submissions directed to whether Ms Buck had been wholly or substantially dependent upon Mr Empson. She distinguished between the dependence of her children upon him and any dependence she might have had. With regard to the latter, Ms Kay pointed to his not being ordered to pay maintenance to her but he was ordered to do so with respect to the children. She also pointed to Ms Buck’s Statutory Declaration dated 29 November 1985 submitting that it demonstrated that her sources of income were adequate to cover her own expenses. There was no evidence of any mingling of finances at the time of Mr Empson’s death.

As to whether Ms Buck was not living with Mr Empson due to an absence resulting from an illness or infirmity, Ms Kay submitted that there was a lack of cogent evidence to support findings that Mr Empson was suffering from a psychiatric illness, that there was a causal connection between any psychiatric illness and violence against Ms Buck or that there was any intention to live together but for any psychiatric illness.

As to any duty to inform Ms Buck of her rights under the CSS, Ms Kay submitted that there is no such duty provided for in the Superannuation Act or in equity. She supported her submission by reference to the legislation and the following passage from Jacob’s Law of Trusts in Australia:
“There is no general duty on trustees to volunteer documents or information to beneficiaries or possible beneficiaries, nor to consult their wishes. In addition to keeping and furnishing accounts, trustees must, when asked to do so, give the beneficiaries full information as to the amount of the trust property and as to its investments even if the beneficiary’s interest is only contingent. A trustee is bound to inform a beneficiary, who on attaining majority is entitled to a share in a trust fund, of that interest.”
THE EVIDENCE
Orders were made by Asche J in the Family Court of Australia (Family Court) on 17 May 1984. Until further order, Mr Empson and Ms Buck were to have joint guardianship of their children but she was to have their sole custody. Their house was ordered to be sold but Ms Buck had exclusive right to occupy it until it was sold. Until the house property was sold, Mr Empson was ordered to pay all mortgage payments as well as $25 each week for each of the three children. In addition, he was ordered to pay the children’s school fees. Ms Buck was ordered to meet all household expenses of the property. Joske J made other orders relating to the disposition of household furniture and chattels and of the proceeds in bank accounts as well as relating to counselling and communication. Ms Buck would meet one half of Mr Epsom’s Bankcard commitment as at 16 May 1984.[4]
[4] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) (T documents); T10
Further orders were made by Joske J on 18 June 1984. They included orders that, until further order, Ms Buck had sole use of the Commodore motor vehicle and that Mr Empson maintain the health insurance of all five of them at the current rate. Further consideration was adjourned to enable a hearing date to be set in July 1984. Ms Buck’s solicitors, Margaret Mandelert & Co, wrote to her on 19 June 1984 advising her of the orders.[5]
[5] T documents; T11
On 18 January 1985 and under s 87 of the Family Law Act 1985 (FLA), Asche J of the Family Court approved a Deed of Settlement (Deed) between Mr Empson and Ms Buck. Mr Shepherd represented Mr Empson at the hearing and Ms Buck was represented by Miss Lord. Before 18 January 1985, Mr Empson had been paying mortgage payments on the family home and other outgoings in respect of Ms Buck’s support. Consistently with the Deed, the Family Court ordered Mr Empson to pay maintenance for their children at the rate of $25 per week for each child as well as their private school tuition fees and other reasonable excursion expenses, uniforms and fares as well as half of all text books. The Family Court did not make a maintenance order in respect of Ms Buck.[6] Under the terms of the Deed, their family home was sold on 25 January 1985 with $49,648.25 of the net proceeds being distributed to Ms Buck. Together with an amount of $4,985.05 already paid to her, her share of the net proceeds was $54,633.30. Mr Empson received $42,244.55 of the net proceeds.[7]

[6] T documents; T12

[7] T documents; T13 and see also the Applicant’s Statement of Facts, Issues and Contentions at [15]

Mr Empson committed suicide on 5 July 1985 when he was 39 years of age. Earlier, on 22 March 1985, he had made a will leaving his estate, after the payment of debts and testamentary expenses, to those of his children living at his death and who attained the age of 21 years in equal shares as tenants in common. The will appointed Mr Shepherd as his executor.[8] Mr Shepherd, who was a solicitor with Kiddle, Briggs and Willox, had acted for him in respect of his matrimonial matters and the two were also close friends. Australia Post advised the Commissioner of Mr Empson’s death and sent the necessary forms in a letter dated 19 July 1985.[9]
[8] T documents; T14
[9] T documents; T17
A file note dated 14 August 1985 records a conversation between an officer of the Commissioner’s office, the Australian Government Retirement Benefits Office (AGRBO) and Mr Shepherd regarding entitlements under the CSS. The handwritten notes are difficult to decipher and, in some sections illegible. As best I can make out, the note states:
“I phoned Mr Shepherd. We discussed at length the possible entitlements to either the Executor or the Legal Guardian. He informed me that divorce proceedings had gone ahead at the Family Law Court. Had … [illegible] the divorce. As … [illegible] Ms Empson … [illegible] the three children. Mr Shepherd will forward a copy of the maintenance arrangements ASAP. I said we would be writing to Mrs Empson shortly.”

The discussion between the AGRBO officer and Mr Shepherd led to his writing a letter to AGRBO on 19 August 1985 identifying himself as the executor of the late Mr Empson’s will and saying, in part:
“Mr Empson and his wife separated in May 1984. In a series of actions in the Family Court, it was ordered that Mr Empson pay maintenance to his children, but no maintenance was either ordered or paid in respect of Mrs Empson who is, we understand, working and is possibly in receipt of some form of social security pension.
…
We presume that Mr Empson’s superannuation will either be paid in a lump sum to his estate or alternatively will be paid on a regular basis for the support, maintenance and education of his children.
…”[10]
[10] T documents; T21
In a letter dated 25 September 1985, the Commissioner wrote to Kiddle, Briggs & Wilcox referring to the conversation between Mr Shepherd and one of AGRBO’s officers on 14 August 1985. Part of the letter stated:
“2.       As Ms Empson was divorced from the deceased at the time of his death, she does not have an entitlement to a benefit under the provisions of the Superannuation Act, 1976. A copy of the definition of ‘spouse’ is enclosed.
3.        The children may be eligible for a benefit if they were wholly or substantially dependent upon the deceased at the time of his death.
4. Would you please arrange for Mrs Empson to complete the enclosed orphan’s application. In order to establish the degree of dependency, if applicable, and to meet the definition of eligible child as defined in sub-section 3(1) of the Superannuation Act 1976 the attached Statutory Declaration should be completed by Mrs Empson advising as follows:
(i)was there a maintenance agreement order or agreement in existence? If so, please forward this document for notation and return.
(ii)if the deceased paid maintenance for the children please state the amount and regularity of the payments over the twelve month period prior to his death, and details of any other amounts paid on an irregular basis.
(iii)details of your household gross annual income and the source, include details of any Social Security payments, bank interest etc received, please show separately amounts received in respect of the children   over the same period.
(iv)details of expenditure incurred in respect of the same period i.e. , approximate costs of food, clothing, rates, rent, mortgage payments, school fees etc. Showing expenditure in respect of the children separately.
(v)any other relevant information which may support the applications.
5. Any information provided will only be used for the purpose of determining any entitlement the child may have under the provisions of the Superannuation Act 1976.”[11]
[11] T documents; T22
In a letter dated 30 September 1985, Kiddle, Briggs and Willcox advised the Commissioner that they had forwarded his letter and documentation to Ms Buck. They advised that Ms Buck was not divorced from Mr Empson at the date of his death. She did not, however, have any maintenance paid to her as distinct from the maintenance she was paid for the children. Kiddle, Briggs and Willcox asked the Commissioner to advise whether Ms Buck had any entitlement to a benefit.[12]
[12] T documents; T23
Ms Buck provided a Statutory Declaration made on 9 October 1985 setting out details of her marriage, the birth dates of her three children and the maintenance and expenses that her late husband had been required to pay under the Family Court’s order made on 18 January 1985. Ms Buck made a second Statutory Declaration on 17 October 1985 setting out the same information but expanding upon the terms of the expenses for which Mr Empson had been responsible under the order.[13]
[13] T documents; T24 and T25
The Commissioner responded to Kiddle, Briggs and Willcox in a letter dated 22 October 1985. Enclosed was a copy of the definition of “spouse” in s 3(1) of the Superannuation Act. The letter advised them that Ms Buck might be eligible for a benefit if she was wholly or substantially dependent on Mr Empson at the date of his death or if their separation was as a result of illness or infirmity. In order to establish whether Ms Buck had the appropriate degree of dependency and met the definition of “spouse”, she would have to provide a further Statutory Declaration setting out details specified in the letter. Those details included details of payments made to her over the previous 12 months by Mr Empson with moneys paid in respect of her children shown separately. She was also asked to give details of her household income from all sources over the same period as well as details of all of her expenditure with that made in respect of the children shown separately.
The Commissioner’s letter went on to advise that there was a second way in which Ms Buck might qualify for benefits. That was by bringing herself within s 3(2) of the Superannuation Act. The Commissioner reproduced s 3(2) in the letter. If she thought that she would qualify under s 3(2), Ms Buck should make a Statutory Declaration setting out the date on which she and Mr Empson started to live apart and whether it was for health reasons. She should request her doctor or doctors to substantiate this in writing.[14]
[14] T documents; T26
On 29 October 1985, Kiddle, Briggs and Willcox wrote to the Commissioner enclosing a certified copy of an Extract of Death Entry in relation to Mr Empson.[15] They followed this on 6 November 1985 with a further letter enclosing the Family Court’s order dated 18 January 1985 and a Statutory Declaration made by Ms Buck. The Statutory Declaration is not included in the documents that I have.[16] I do have a copy of a later Statutory Declaration in which Ms Buck refers to an earlier Statutory Declaration. In the second Statutory Declaration, she said:
“2. That prior to 18^th January 1985 my late husband had been contributing to my support in the sense that he had been paying mortgage payments and other outgoing in relation to my support. As and from the approval of the Section 87 Agreement on the 18^th January 1985 my late husband had not been making maintenance payments for my support.”[17]
[15] T documents; T28
[16] T documents; T29
[17] T documents; T31
On 3 December 1985, Kiddle, Briggs and Willcox wrote to the Commissioner advising that Ms Buck was intending to make a claim for both herself and her children and was preparing the necessary Statutory Declaration.[18] In a letter dated 10 December 1985, Kiddle, Briggs and Willcox sent two declarations made by Ms Buck dated 9 October 1985 and 29 November 1985.[19] They followed this letter with another dated 17 January 1985 enquiring about when the Commissioner anticipated that a decision would be made as to the children’s entitlements. Reference was made to the financial embarrassment that “the estranged widow” was then suffering.[20]
[18] T documents; T32
[19] T documents; T33
[20] T documents; T34
On 22 January 1986, an officer of AGRBO summarised matters to date. In relation to Ms Buck, the officer noted that the Family Court had not made a maintenance order in relation to her. In view of that, the officer recommended that she not be accepted as a spouse under the Superannuation Act. Subject to sighting their birth certificates, the officer recommended that the children be accepted as substantially dependent upon their father.[21]

[21] T documents; T35

A little later, on 24 January 1986, a delegate of the Commissioner decided that Mr Empson’s death had not been caused, or substantially contributed to, by a physical or mental condition that had existed at the time he became an eligible employee.[22] Furthermore, the delegate formed the opinion that it was unlikely that Mr Empson had failed to furnish information in connection with the medical examination that he was required to undergo for the purposes of the Superannuation Act.[23]
[22] T documents; T36
[23] T documents; T36

An officer from AGRBO telephoned Mr Shepherd seeking information regarding an account into which to pay the children’s benefits. On 11 February, the Commissioner advised Kiddle, Briggs & Willox that he had determined that the three children of Mr Empson and Ms Buck had been substantially dependent on him. He also advised that he did not accept Ms Buck’s claim as she had neither been living with him nor substantially dependent on him at the time of his death.[24]

[24] T documents; T37 and T38

The Commissioner wrote separately to Ms Buck on 24 March 1986 setting out details of the payments that would be made to her for the maintenance of two of the children and how they would be paid.[25] Kiddle, Briggs & Willox had sent the third child’s birth certificate separately from the other two when it had become available to them in February 1986.[26] Ms Buck telephoned AGRBO on 27 March 1986 on receiving the Commissioner’s letter to correct the details that had been included regarding her daughters’ birth dates and to advise that her son had been omitted. The note records that Ms Buck had advised that she had sent in the birth certificates for the three children. The details and error were corrected and a telephone message left with her daughter to that effect on the dame day.[27] On 3 April 1986, Ms Buck’s solicitors, James J. McCarthy & Associates wrote to the Commissioner regarding his letter dated 24 March 1986. The issue they raised concerned the rate of Mr Empson’s salary at the date of his death.[28] They followed this with a further letter dated 15 April 1986 advising of the information they had been given by Australia Post regarding his salary.[29]
[25] T documents; T43
[26] T documents; T39 and T40
[27] T documents; T44
[28] T documents; T45
[29] T documents; T47
An officer from the AGRBO telephoned Ms Buck to explain that the benefits were calculated on the basis of the pension, to which Mr Empson would have been entitled, and not on his salary at the date of death. They discussed the arrears that had been payable for her son and advised that they had been offset against overpayments made for her daughters.[30] The Commissioner also wrote to Ms Buck’s solicitors explaining that the children were receiving the maximum benefit payable under the CSS i.e. 90% of 70% of Mr Empson’s final salary.[31]
[30] T documents; T48 and see also the Commissioner’s letter to her dated 9 May 1986
[31] T documents; T50. A pension at the rate of 70% of his final salary was the maximum amount that would have been payable to him under the CSS.
In a letter dated 23 February 2017, Ms Buck sent an Application for Reconsideration of a Decision to what had become the CSC. The basis of her application was that, contrary to the Commissioner’s correspondence in September 1985, she and Mr Empson were not divorced at the date of his death.[32] The CSC advised Ms Buck that it had accepted her application and that it would present her case to the APS Reconsideration Committee (Committee) after examining the facts. The letter went on to advise her of the meaning of “eligible spouse” and to invite her to present any evidence in support of her claim. It gave as examples, bills, certificates and Statutory Declarations.[33]
[32] T documents; T58
[33] T documents; T59
Various correspondence was exchanged between the CSC and Ms Buck. In an email dated 10 May 2017, an officer of the CSC advised Ms Buck that, contrary to her previous mistaken advice, provision was made in the Superannuation Act for cases in which separation was due to illness or infirmity. The officer went on to suggest that she might be able to find information relating to such matters as medical appointments, treating doctors’ reports or any other information that showed that Mr Empson’s illness was the cause of their separation. She also asked for a Statutory Declaration setting out Ms Buck’s reasons for not requesting review 30 years before.[34]
[34] T documents; T68
Ms Buck responded on the following day, 11 May 2017, with Mr Empson’s Medicare number and advising that she had scheduled a meeting with the family doctor in the following week.[35]
[35] T documents; T69
Ms Buck supplied further information from both herself and her children regarding the state of her husband’s health before they separated and his behaviour towards them. She provided the names of three psychiatrists, who had treated Mr Empson but who had died on various dates in 2013 and 2016. She also gave the names of three hospitals where she said Mr Empson had been admitted as a residential patient. He had been given ECT treatment and individual therapy at those hospitals with inpatient support and drug treatment for many weeks at a time. He was taking Nardil 15mg (5 tablets each day), Surmontal 25mg (4 tablets each day), Lexotan 12mg (3 tablets per day) and Librium 25mg (1 tablet per day). The cocktail of drugs, alcohol and therapy, Ms Buck wrote in her email to CSC dated 18 May 2017, “became an instrument in provoking violence against” her and the children.[36]
[36] T documents; T70 and T71
On 1 June 2017, Ms Buck wrote an email to CSC explaining that she had no other documents to present at that time. Over the previous 32 years, she had often thought of her late husband’s superannuation. When she retired from her executive position in 2016, she began sorting through his papers and decided to make enquiries.[37]
[37] T documents; T75
The Committee made its decision on 14 August 2017 to the effect that circumstances did not exist to allow Ms Buck an extension of the 30 day period prescribed under the Superannuation Act.[38] Ms Buck indicated that she would seek review of the Committee’s decision and did that on 16 August 2017 immediately upon receiving advice of the decision.[39] The CSC responded in a letter dated 17 August 2017 setting out the general principles it applied in deciding applications for an extension of time and suggesting categories of evidence that she might have. Those categories included medical evidence to show that she had not been in a position to request reconsideration at an earlier time, evidence that she had received misleading or incomplete advice and any other circumstance that was out of her control or prevented her from freely electing to request review at an earlier time.[40]
[38] T documents; T78
[39] T documents; T80
[40] T documents; T81
A file note dated 18 August 2017 noted that:
“Ms Buck advised that she will provide further information in support of her case. Confirmed with Ms Buck that a copy of the decision was sent in February 1986 to Solicitors. Ms Buck claimed that she did not receive that later until September.
Ms Buck advised that Mr Empson was paying the mortgage and big bills so she was financially dependent on him prior to his death. Ms Buck advised that they were not divorced. I explained the legislative criteria to Ms Buck including separation due to illness. Ms Buck claimed that she had separated from Mr Buck [sic] due to domestic violence and that the Police had been involved. Ms Buck further advised that she and the children were then staying in refuges and hostels.”[41]
[41] T documents; T83
In a Statutory Declaration dated 1 September 2017, Ms Buck described the difficulty that she had endured in continuing to study at Monash University while working as a night nurse at a nursing home and caring for the three children. She would take the children with her to work where they slept on the floor in sleeping bags while she worked. Her brother paid the mortgage and helped pay the school fees. The financial and emotional pressure from July 1985 to February 1986 had been very difficult. Ms Buck concluded her declaration stating:
“Regarding the Superannuation entitlements application being sent to Neil Shepherd – lawyer for my husband – the paperwork was not sent on to myself.
However, paperwork for … & … [daughters] was filled out at the Shepherds office but did not include … [son]. I rang the Canberra office to inquire regarding the reason for my son not getting the entitlement. This was in Feb/March 1986. If I had known that I could have applied for entitlement I would have applied.”[42]
[42] T documents; T84
On 6 September 2017, Ms Buck wrote a lengthy email about her circumstances. She included a statement that:
“The circumstances during this difficult time were over powering and with the constant pressure from Neil Shepherd the Executor of my late husband’s estate, not wanting to help the family, my life became an emotional roller coaster.”[43]
[43] T documents; T87
Ms Buck’s two daughters each wrote to the same effect in their Statutory Declarations dated 6 September 2017. They wrote:
“2. Dad’s solicitor Mr Neil Sheppard had an inherent dislike for mum and cut all payments so she had no income coming into the house. So mum went back to nursing. …”[44]
“B) Mum was forced to do night shift work to receive an income. This meant we (the three children) had to spend the night at her workplace (nursing home).”[45]
[44] T documents; T88
[45] T documents; T89
On 12 September 2017, Ms Buck telephoned the CSC to say, among other things, that she could not recall having submitted an application 30 years before.[46] An officer from CSC reviewed the file and advised her that, in 1985, her solicitor had notified the now CSC that she and the children wished to apply for benefits and that she would provide a Statutory Declaration. The Statutory Declaration was duly received.[47]
[46] T documents; T92
[47] T documents; T93
An officer from CSC contacted Ms Buck on 20 September 2017 regarding her request for reconsideration. A note of the conversation recorded, in part:
“Mrs Buck advised that she thought that she could not appeal that decision as she was told because she was divorced, she was not entitled. I informed Mrs Buck that correspondence after that date stated that she may be eligible and that CSC was notified that she was not divorced but separated. I further explained that the decision by the Delegate was made in accordance with the legislation regarding her eligibility as a spouse and not whether she was divorced or not.
I confirmed with Mrs Buck that she had received a copy of the decision as she had provided a copy of it to CSC. I confirmed with Mrs Buck that she had engaged another solicitor which CSC received correspondence from some 2 months after the decision was made and there was no query made in relation to the decision of her eligibility as a spouse made at that time.
Mrs Buck advised that she will obtain information from the Police in relation to her case from May 1985 and from Australian Unity in relation to hospital admissions for Mr Empson.
…”[48]
[48] T documents; T94
Ms Buck telephoned the CSC on 25 October 2017 to advise that she had been unable to obtain records from the police regarding their intervention in matters involving her family. The CSC officer reminded her that the question for reconsideration was why she had not requested reconsideration in 1986 when the original decision had been made by the Commissioner. That question had to be considered and an extension granted before the substantiveness of her decision could be considered. The officer advised Ms Buck needed to provide evidence as to what it was that had hindered her ability to seek reconsideration in the month after the decision had been made and why it took her 30 years to do so. He suggested that she obtained reports from any doctors, counsellors, psychiatrists, psychologists or grief counsellors whom she might have seen at the time or her employer who might provide some information about her situation and health.[49]
[49] T documents; T98
Ms Buck made a statement dated 15 October 2018 referring to her marriage, their children and the house they bought. She said that she and her husband separated on 13 May 1984:
“… The separation resulted from a violent and aggressive encounter with Lloyd which, as a result of Lloyd’s behaviour, placed my safety and the safety of the children at serious risk. This encounter was the last straw for the children and me (which I have detailed below) after which we held the concluded view that it was not safe to live with Lloyd and to continue on would be dangerous.”[50]
[50] Exhibit A at [6]
Ms Buck also said:
“In a period from the late 1970’s until the separation, Lloyd suffered from acute mental illness which caused him to behave in verbally and physically violent ways towards the children and me. On many occasions during this period (until the separation), the children and I spent nights in local parks and in women’s refuges. Lloyd’s behaviour became more erratic, reclusive and self-destructive, and destructive to the lives of the children and me. In this period by my observation, Lloyd suffered from significant anxiety and major depression for which he was prescribed heavy medication for depression and mood swings. In the circumstances his use of alcohol was excessive. I noted that his work suffered during this period (he had prolonged absences from work) and it was clear that he was not coping with his duties and he was demoted. I recall Lloyd frequently.expressing great unhappiness about his work.
The medication Lloyd was taking in 1984 per day was 5 tablets of Nardil (15mg); 3 tablets of Lexotan (12mg); 4 tablets of Surmontil (25mg); 1 tablet of Librium (25mg).”[51]
[51] Exhibit A at [9] and [10]
Ms Buck called the CSC on 3 November 2018, and asked why it had not sent the Commissioner’s decision to her and only to the solicitor. The officer noted that he explained to Ms Buck that the solicitor had been representing her at the time and that would have been the reason for sending it to him. He also advised her that she had a copy of the decision as she had sent it to CSC and had asked when she received it. When Ms Buck told him that she had never made an application, the officer repeated his previous explanation that her Statutory Declaration had been taken to be her application.[52]

[52] T documents; T99

Ms Buck wrote to Dr Glass on 3 November 2017 asking him if he could recall her and her children attending at his rooms sometime after Mr Empson’s suicide in July 1985. Dr Glass replied on 17 November 1987 advising Ms Buck that he had been retired for seven years and that he had destroyed all of his files earlier in the year when seven years from his retirement had passed and he was no longer legally required to keep them. Therefore, Dr Glass advised that his file of his “… treatment of you and your children was destroyed earlier this year as were my records of appointment dates.”[53] He was unable to provide a statement regarding his past treatment as she had requested as his medical practice insurer had advised him that it would constitute a new report and he would not be covered by his insurance.[54]
[53] T documents; T102
[54] T documents; T101 and T102
LEGISLATIVE FRAMEWORK
The Long Title to the Superannuation Act stated:
“An Act to make provision for and in relation to an Occupational Superannuation Scheme for persons employed by the Commonwealth, and for certain other persons”.
The CSS was established by the Superannuation Act and not by a Trust Deed. In 1985, responsibility for the administration of that legislation was entrusted to the Commissioner at the relevant time.[55] He was assisted by staff appointed under the Public Service Act 1922.[56]Under s 27, the Commissioner was required to cause to be kept proper records of contributions paid into the Superannuation Fund and in respect of benefits paid under the Superannuation Act as well as of moneys paid into and out of the Superannuation Fund into the Consolidated Revenue and vice versa. The Superannuation Fund was established under s 40 and managed under s 41 by the Commonwealth Superannuation Board of Trustees No. 2 (Board) established under s 27A.
[55] Superannuation Act; s 17(2)
[56] Superannuation Act; s 26(1)
The architecture of the Superannuation Act remains much the same in 2019 as it did in 1985. The Board, however, no longer exists and nor does the Commissioner or the Superannuation Fund. There now exists a CSS Fund established under s 40 and that is managed by the CSC according to s 41 and other provisions of the Superannuation Act. Decisions are now made by the CSC rather than the Commissioner under provisions found in Part VI and s 3(2), which are relevant in this case.
Part VI is concerned with the payment of benefits to spouses and children. When an eligible employee dies before attaining the maximum retiring age and is survived by a spouse, that spouse is entitled to a benefit as set out in s 81. The nature of that benefit depends on certain circumstances. Taking the case of a spouse who does not make an election under ss 83 or 84, the spouse would be entitled to pension at the rate of 67% of the annual rate of invalidity pension that would have been payable to the deceased eligible employee. If there are children of the deceased eligible employee, that rate increases to 100% when there are three or more eligible children.[57] Where the eligible employee dies without leaving a spouse, the percentage of pension payable in respect of eligible children was a sliding scale ranging from one to four or more eligible children. The relevant percentage for three eligible children was 90% of the notional pension that would have been payable to the eligible employee.[58]
[57] Superannuation Act; s 82
[58] Superannuation Act; s 109
The expression “spouse” is defined in s 3(1) but only paragraph (b) is relevant in the context of this case. It provides:
“‘spouse’, in relation to a person who has died and was, at the time of his death, an eligible employee or a retirement pensioner, means –
(a)…
(b)a person who was legally married to the deceased person at the time of the person’s death but who was not living with the person on a bona fide domestic basis at that time, and who, in the opinion of the Commissioner, was wholly or substantially dependent upon the deceased person at that time;
(c)-(f)…”
The definition of “spouse” must be read in light of s 3(2):
“Where the Commissioner is of the opinion that a person would, but for a temporary absence or an absence resulting from illness or infirmity, have been living with another person at any time on a permanent and bona fide domestic basis, the first-mentioned person shall, for the purposes of the definition of ‘spouse’ in sub-section (1) of this section, and of section 9, be deemed to have been living with the other person on a permanent and bona fide domestic basis at that time.”
Part XI of the Superannuation Act includes provisions relating to the review of decisions made under that legislation. At the relevant time, the starting point was s 154(2), which provided:
“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.”
The expression “reviewable decision” was defined in s 154(1) to mean:
“… 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).”
The request for review of the reviewable decision had to set out the reasons for making the request.[59] On receiving a request, the Commissioner was required to reconsider the decision and might confirm or revoke the decision or vary it in such manner he thought fit. That was the effect of s 154(4). Among others, applications might be made to the Tribunal for review of reviewable decisions that had been confirmed or varied under s 154(4). That was the effect of s 154(6) of the Superannuation Act.

[59] Superannuation Act; s 154(3)

Since the establishment of the Superannuation Complaints Tribunal, s 154 has been repealed and applications may no longer be made to the Tribunal. Transitional arrangements were made, however, in the Superannuation Legislation (Consequential Amendments and Transitional Provisions) Act 2011. Their effect was that, despite the repeal of s 154, an application may still be made to the Tribunal:
“… under that section for review of a decision by the Commissioner of Superannuation or a delegate of the Commissioner, made before the commencement under:
(a) the Superannuation Act;
(b) the Superannuation Act 1922; or
(c) regulations made under either of those Acts;
if, at commencement, the period for making an application for review has not ended.”[60]
[60] Superannuation Legislation (Consequential Amendments and Transitional Provisions) Act 2011; s 3; Schedule 2, Item 15(7)
CONSIDERATION
I have not included in my summary of the evidence, reference to particular acts of violence described by Ms Buck and/or her children. I accept that they occurred and that she was physically and extensively abused during the course of her marriage. She was fearful of her husband as a result as were her children. For at least one of her children, the consequences of their family environment have had a lasting effect.

Did the Commissioner have a duty to inform Ms Buck of any entitlement to apply for a benefit under the CSS?

Mr Donald submitted that the duty of a trustee of a trust is more intense when the trust is a superannuation trust. That follows from the fact that it is extremely important to the beneficiaries of superannuation trusts that benefits are paid to those entitled to them. The CSS is a strict trust and a beneficiary is entitled as of right to a benefit provided under it. Mr Donald referred to Finch v Telstra Super Pty Ltd[61] (Finch) in support of his submission and distinguished trusts to which the principles discussed in Karger v Paul[62] applied. In the case of Ms Buck, he submitted, the Commissioner had been in breach of his duty when he did not satisfy himself that she had been fully apprised of her rights when her application was initially refused in 1986.
[61] [2010] HCA 36; (2010) 242 CLR 254; 271 ALR 236 at [66]; 280-281; 254; French CJ, Gummow, Heydon, Crennan and Bell JJ
[62] [1984] VicRp 13; [1984] VR 161; McGarvie J

Beginning with Karger v Paul, the issue before McGarvie J arose from a will in which the testatrix left her entire estate to her husband during his lifetime with a power to her trustees. She also gave power to her trustees, in their absolute and unfettered discretion and upon her husband’s request, power to pay or transfer the whole or part of the capital of the estate to him for his own use absolutely. The residue of the estate, if any, was to be paid to Mrs Karger, who was the remainderman. The testatrix appointed her husband and her solicitor as her trustees. The husband made a written request to himself and the solicitor that they pay the entire capital of the estate to him and they did so. Soon after the transfer was complete, the husband died and Ms Karger received no benefit under the will. Ms Karger brought action against the solicitor and the executor of the husband’s will claiming that the trustees had acted wrongfully and thereby deprived her of a benefit under the will.

Before McGarvie J, it was not put that the solicitor, Mr Paul, who was a trustee had given inadequate time or thought to the exercise of his discretion. What was put was that Mr Paul’s enquiries, sources of information and his knowledge were inadequate and unreliable in relation to the husband’s circumstances and the reasons for his making the request. His Honour concluded:
“ If the gaps and errors in Mr Paul's information and belief upon matters relevant to the exercise of discretion were sufficiently extensive, it could found an inference that he had not been in a position to give real and genuine consideration to his exercise of the discretion. I do not draw that inference from the evidence before me as to Mr Paul's information and belief. I am satisfied that he gave real and genuine consideration to his decision. It is essential to have regard to the actual situation in which he made the decision and to bear in mind that he made the decision as an individual who was a trustee under a will. For reasons mentioned later, I am satisfied that Mr Paul acted in good faith. Having made those findings and it not being alleged that he acted for any ulterior motive, it is not otherwise open to the Court to examine the adequacy of his inquiries, his information or belief, or his reasons for, or manner of, exercising the discretion.”[63]
[63] [1984] VicRp 13; [1984] VR 161 at 175
Had it been shown that Mr Paul had not conducted himself with fairness, that might tend to show lack of good faith but the conduct did not of itself amount to acting otherwise than in good faith. Had it been shown that Mr Paul had suspected that something was wrong when the husband made his request and had he refrained from making a proper enquiry, that would have shown that he had acted without genuine consideration and in good faith. There was no evidence to support any notion that this was so on the facts of the case.[64]
[64] [1984] VicRp 13; [1984] VR 161 at 178
In Finch, the High Court considered a submission that principles expressed by McGarvie J in Karger v Paul should not be applied to superannuation funds. Various reasons were put forward including a submission that superannuation funds are not, in truth, discretionary trusts as was the trust in Karger v Paul. The High Court considered Mr Finch’s entitlement to a total and permanent invalidity benefit under the terms of the Telstra Superannuation Scheme (TSS). The TSS is regulated by a Trust Deed (Deed). The High Court said of the application of the Karger v Paul principles to superannuation funds in the form of TSS:
“… There is no doubt that under Karger v Paul principles, particularly as they have been applied to superannuation funds, the decision of a trustee may be reviewable for want of ‘properly informed consideration’ … If the consideration is not properly informed, it is not genuine. The duty of trustees properly to inform themselves is more intense in superannuation trusts in the form of the Deed than in trusts of the Karger v Paul type. It is extremely important to the beneficiaries of superannuation trusts that where they are entitled to benefits, those benefits be paid. Here, for example, the applicant was claiming a Total and Permanent Invalidity benefit to support himself for the rest of his life. His claim depended on the formation of an opinion by the Trustee about the likelihood that he would ever engage in ‘gainful Work’: that was not a mere discretionary decision. In the Deed there was a power to take into account ‘information, evidence and advice the Trustee may consider relevant’, and that power was coupled with a duty to do so. It would be bizarre if knowingly to exclude relevant information from consideration were not a breach of duty. And failure to seek relevant information in order to resolve conflicting bodies of material, as here, is also a breach of duty. The Scheme is a strict trust. A beneficiary is entitled as of right to a benefit provided the beneficiary satisfies any necessary condition of the benefit. Whether or not it will be decided hereafter that, consistently with s 14 of the Complaints Act, the duty of a trustee in forming an opinion of the present type is a duty to form a fair and reasonable opinion, or even a duty to form a correct opinion, there is because of the importance of the opinion and its place in the Scheme a high duty on the Trustee to make inquiries for ‘information, evidence and advice’ which the Trustee may consider relevant. The existence of that duty in a more intense form than exists under Karger v Paul principles in their standard application is further support for the correctness of Byrne J’s decision.”[65]
[65] [2010] HCA 36; (2010) 242 CLR 254; 271 ALR 236 at [66]; 280-281; 254
The case of Finch was concerned with the trustees duty to inform themselves properly in determining whether a person was entitled to a benefit under a superannuation fund. That was also the case in Alcoa of Australia Retirement Plan Pty Ltd v Frost.[66] The case with which I am concerned raises a different issue. That is whether the Commissioner had a duty to notify Ms Buck that she might be entitled to a benefit under the Superannuation Act.
[66] [2012] VSCA 238; 36 VR 618 at [59]; 633 per Nettle JA, with whom Redlich JA and Davies AJA agreed
In a strict trust constituted by a deed of settlement, the trustee was found by Havers J in Hawkesley v May[67] (Hawkesley) to have a duty to inform a beneficiary, on his attaining 21, that he had an interest in the capital and income of the funds of the trust. In his judgment in Segelov v Young Services Pty Ltd[68] (Segelov), Gleeson JA, with whom Meagher and Leeming JJA agreed, noted that there were some ambiguities in the factual situation as recorded in the judgment in Hawkesley. If it was the case that Havers J was referring to the right of a beneficiary to inspect documents and to have his rights explained to him, his conclusion was explicable on the facts of the case. The facts in Hawkesley had been that one of the beneficiaries had turned 21 but had been unaware that he was entitled to an interest under a trust fund and the trustees had failed to transfer his interest to him.
[67] [1956] 1 QB 304; [1955] 3 WLR 569
[68] [2015] NSWCA 156; (2015) 89 NSWLR 431
The New South Wales Court of Appeal rejected any contention that Hawkesley could be used to justify the next step i.e. that a beneficiary’s right to inspect trust documents gives rise to a corresponding duty of disclosure owed by the trustee to the beneficiary to have his or her rights explained to him or her. Gleeson JA said that:
“… To accept such a proposition would be to impose a duty on trustees without regard to the nature and the terms of the relevant trust and the social or business environment in which the trust operates …”[69]
His Honour went on to examine the terms of the particular trust before the court in Segelov. He concluded that the terms of the particular trust deed, the manner in which Ms Segelov had received her interest upon payment in the manner provided under that trust deed and the fact that the trust deed afforded the trustee full and final discharge of its duty were inconsistent with there being any duty of notification. It is clear from his Honour’s judgment that an examination of each trust deed and each set of circumstances is required in order to determine whether there is any duty of disclosure.
[69] [2015] NSWCA 156; (2015) 89 NSWLR 431 at [130]; 456
Like the TSS, the Superannuation Fund established under the Superannuation Act in 1976 and continuing in 1985 was not established as a discretionary trust. Benefits are payable, and only payable, according to the terms of the legislation. The criteria that must be satisfied before a person’s entitlement to them is established and they are payable are detailed and precise. The Commissioner, and now the CSC, has a duty to determine whether a person is eligible to a benefit. Part VI provided for the Commissioner to make that determination in each instance. So too did s 3(2) where it requires the Commissioner to form an opinion that the relevant circumstances prevail so that a person is deemed to be an eligible employee’s spouse. Having regard to the terms of the Superannuation Act, I do not consider that the Commissioner was under any duty to notify Ms Buck that she might be entitled to a benefit.
In view of the structure of the Superannuation Act, it is difficult to see that the principles relating to the duties of a trustee have any relevance in the context of the determination of the benefits payable under the CSS. The duties imposed upon the Commissioner in 1985 and now upon the CSC regarding determinations as to entitlements are founded in statutory provisions. The Commissioner was not the trustee of the Superannuation Fund. The trustee did not make determinations about the benefits that are payable.
Even if there were a duty of this kind imposed on the Commissioner, I am satisfied that he fulfilled it. As is apparent from the letter of Australia Post dated 19 July 1985 to the Commissioner, it had been unable to obtain a copy of the marriage certificate between Mr Empson and Ms Buck. As a result, it had only been partially able to complete the S3B form that it had to provide to the Commissioner when an eligible employee ceased to be an employee. Australia Post attached a copy of Mr Empson’s birth certificate and provided details of his salary and service and sent the form in an incomplete state. Australia Post advised the Commissioner that it believed that Mr Empson’s spouse no longer resided with him but that Kiddle, Briggs & Willox were handling Mr Empson’s estate. It suggested that the Commissioner might be able to obtain further information on Mr Empson’s marital status from those solicitors. The Commissioner took up that suggestion. He wrote to Kiddle, Briggs and Willcox on 22 October 1985 explicitly drawing their attention to benefits for which Ms Buck might be eligible and enclosing a Statutory Declaration for her to complete if she considered she would qualify. I have set out the text of the letter in full at [14] above. Ms Buck went on to provide Statutory Declarations. Having regard to the Commissioner’s correspondence with Kiddle, Briggs and Willox regarding Ms Buck’s claims and information, I have concluded that the Commissioner satisfied any duty to notify her of her entitlements.
The Tribunal’s role on review
The Superannuation Act provides for review of the Commissioner’s decisions but that review takes place on traditional principles of merits review. These principles were developed in cases such as Drake v Minister for Immigration and Ethnic Affairs[70] where Smithers J observed that:
“… The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view, was objectively, the right one to be made. …”[71]

Bowen CJ and Deane J said:
“ The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct or preferable one on the material before the Tribunal. …”[72]

[70] (1979) 24 ALR 577; 2 ALD 60; 46 FLR 409; Bowen CJ, Smithers and Deane JJ

[71] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60; 46 FLR 409 at 599; 77; 429-430

[72] (1979) 24 ALR 577; 2 ALD 60; 46 FLR 409 at 589; 68, 419 per Bowen CJ and Deane J

This was also at the heart of the statement made by Brennan J in Bushell v Repatriation Commission[73] when considering s 120 of the Veterans’ Entitlements Act 1986:
“… Proceedings before the A.A.T. may sometimes appear to be adversarial when the Commission chooses to appear to defend its decision or to test a claimant's case but in substance the review is inquisitorial. Each of the Commission, the Board and the A.A.T. is an administrative decision-maker, under a duty to arrive at the correct or preferable decision in the case before it according to the material before it. If the material is inadequate, the Commission, the Board or the A.A.T. may request or itself compel the production of further material. The notion of onus of proof, which plays so important a part in fact-finding in adversarial proceedings before judicial tribunals, has no part to play in these administrative proceedings. Nor does s.120 create any presumption which has to be dispelled by the material before the decision-maker.”[74]
[73] [1992] HCA 47; (1992) 175 CLR 408; Mason CJ, Brennan, Deane, Dawson, Toohey and McHugh JJ
[74] [1992] HCA 47; (1992) 175 CLR 408 at 424-5
Applying the approach to this case, I must consider again whether Ms Buck should be allowed a period beyond the 30 day period provided for in s 154(1), within which to request the Commissioner to review his decision. That is a period that extended from March 1986, when the 30 day period following the Commissioner’s decision on 11 February 1986 would have ended and 23 February 2017, when Ms Buck requested the CSC to review that decision.
Should the 30 day period be extended?
A. Principles relating to extending time
In considering the manner in which a discretion to grant an extension of time should be exercised and regardless of the context, reference is frequently paid to the principles set out by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen, Minister for Home Affairs and Environment[75] (Hunter Valley). That case was not decided in the context of making an administrative decision but of judicially reviewing an administrative decision. It was decided in the context of an application under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act). Section 11(1)(c) permits an application to be lodged “… within such further time as the court concerned … allows.”

[75] [1984] FCA 176; (1984) 3 FCR 344; 58 ALR 305; 7 ALD 315

After noting that s 11 of the ADJR Act does not set out any criteria to be followed in exercising the Court’s discretion and that there had been a number of decisions of judges of the Federal Court all sitting at first instance, he distilled six factors that are relevant in deciding to exercise the discretion. The first factor[76] was modified by the Full Court of the Federal Court in Comcare v A’Hearn[77] in the context of an application to extend time lodged under the AAT Act. Allowing for that modification, the factors were summarised by Federal Magistrate McInnis, as he then was, in Phillips v Australian Girls’ Choir Pty Ltd & Anor[78] when he said:
[76] It read in part that “It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time …”: (1984) 3 FCR 344; 58 ALR 305; 7 ALD 315 at 348; 310-311; 320
[77] [1993] FCA 498; (1993) 45 FCR 441; 119 ALR 85; 18 AAR 366
[78] [2001] FMCA 109
“ In the light of A’Hearn’s case, it is clear that at least one of the principles referred to by Wilcox J in the Hunter Valley decision needs to be modified namely that it should not be any longer regarded as law that the inexcusable delay on the part of a solicitor should be visited upon the client and nor should it be a principle that there is in fact a pre-condition to the exercise of discretion in favour of the applicant for extension to show an acceptable explanation for delay or that it’s fair and equitable in the circumstances to extend time. In the light of the decision in Ahearn’s [sic] case it is useful to set out in modified form the relevant principles in relation to the exercise of the Court’s discretion when considering an extension of time in a human rights application based upon those principles distilled by Wilcox J in Hunter Valley as follows:
1. There is no onus of proof upon an applicant for extension of time though an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied it is proper to do so. The ‘prescribed period’ of 28 days is not to be ignored (Ralkon v Aboriginal Development Commission (1982) 43 ALR 535 at 550)
2. It is a prima facie rule that the proceedings commenced outside the prescribed period will not be entertained (Lucic v Nolan (1982) 45 ALR 411 at 416). It is not a pre-condition for success in an application for extension of time that an acceptable explanation for delay must be given. It is to be expected that such an explanation will normally be given as a relevant matter to be considered, even though there is no rule that such an explanation is an essential pre-condition (Comcare v A’Hearn [1993] FCA 498; (1993) 45 FCR 441 and Dix v Client Compensation Tribunal (1993) 1 VR 297 at 302)
3. Action taken by the applicant other than by making an application to the court is relevant in assessing the adequacy of the explanation for the delay. It is relevant to consider whether the applicant has rested on his rights and whether the respondent was entitled to regard the claim as being finalised. (See Doyle v Chief of Staff (1982) 42 ALR 283 at 287)
4. Any prejudice to the respondent, including any prejudice in defending the proceeding occasioned by the delay, is a material factor militating against the grant of an extension. (See Doyle at p 287)
5. The mere absence of prejudice is not enough to justify the grant of an extension. (See Lucic at p 416)
6. The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted. (See Lucic at p 417)
7. Considerations of fairness as between the applicant and other persons otherwise in a like position are relevant to the manner of exercise of the court’s discretion (Wedesweiller v Cole (1983) 47 ALR 528).”[79]
[79] [2001] FMCA 109 at [10]. In Budd v Secretary, Department of Education, Employment and Workplace Relations, Cowdroy J approved and applied these factors in the context of s 44(2A)(a) of the AAT Act: [2008] FCA 1540 at [19]. Section 44(2A) provides that an appeal instituted under ss 44(1) or (2) shall be instituted within the time set out in s 44(2A)(a) and in such manner as is prescribed by the Rules of Court made under the Federal Court of Australia Act 1976: AAT Act; s 44(2A)(b).

Principles of this sort are relevant when considering whether to extend the time within which an application may be made to the Tribunal but, in Hunter Valley, Wilcox J made it clear that he did not intend to set out an exhaustive statement of the principles to be considered. A similar sentiment was expressed by Burchett J, with whom Sheppard and Beaumont JJ agreed, when he said in Australian Broadcasting Tribunal v Bond Corporation Holdings Ltd & Ors:[80]
“… The discretion is conferred by the Act in the widest terms. It can only be read down by reference to the subject matter, scope and purpose of the statute (see Minister for Aboriginal Affairs v. Peko-Wallsend Limited [1986] HCA 40; (1986) 162 CLR 24 at 40). Having regard to considerations already discussed in these reasons, an examination of s. 92FABsuggests that the discretion to extend the period was conferred upon the Tribunal because it was impossible for Parliament to legislate precisely in respect of all the various situations that would arise. The task of balancing the public and private interests involved in each individual case was therefore left to the Tribunal. It would be quite inconsistent with this statutory scheme to permit the Tribunal to attempt itself the task which Parliament eschewed of laying down a rigid rule governing all cases. …”[81]
[80] [1989] FCA 44
[81] [1989] FCA 44 at [25]

In light of these principles, it can be seen that considerations of the sort set out in Hunter Valley and Phillips v Australian Girls’ Choir Pty Ltd & Anor may well be relevant but a view as to whether or not they are relevant depends on a consideration of them in light of the matter, scope and purpose of the enactment conferring power on a decision-maker to extend a time limit. Whether they are the only criteria that are relevant depends upon the same consideration but also upon a further principle that underpins all of the principles. That principle is that the extension of time provisions are intended, as in a court:
“… to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties …”.[82]
[82] Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479; 64 ALJR 458 at 480; 459 per McHugh J

In the particular circumstances of the case that I must consider, the Superannuation Act establishes a superannuation scheme. Provision is made for eligible employees and their Commonwealth public sector employers to make contributions and for the payment of pensions in defined circumstances to those eligible employees and certain other persons. It is a scheme that continues today although it has long since been superseded by other schemes for public sector employees and ceased to accept new members. Provision is made for the review of decisions but the time prescribed by s 154(2) as the time within which to make a claim is 30 days after the date on which the decision first comes to the notice of the person making that request. There is nothing in the provision that is made for review or in the scheme generally that suggests to me that I should have regard to criteria other than those set out in Hunter Valley as modified by Comcare v A’Hearn and summarised in Phillips v Australian Girls’ Choir Pty Ltd & Anor.

The weight that will be given to each criterion will vary from case to case. With one exception, one criterion is not inherently or necessarily more weighty than another. An application for an extension of time is not decided on the basis of whether more criteria are found to favour, or not favour, the application. Essentially, the criteria are simply aids to decide whether it is fair to extend the time given the statutory framework within which the decision was made and which is intended to be applied consistently to those who come within its compass.

The one criterion that I have excluded from my general statement of principle in the previous paragraph relates to the merits of the application. If an extension of time were granted and the application were lodged, would that application have reasonable prospects of success? This is the one exception, for Parliament has separately recognised in s 42B of the AAT Act that the Tribunal may dismiss an application for the review of a decision if it is satisfied that, among other matters, it has no reasonable prospect of success.[83]
[83] AAT Act; s 42B(1)(b)

What is meant by the expression “no reasonable prospect of success” was considered by Gilmour J in Dandaven v Harbeth Holdings Pty Ltd[84] in the context of s 31A of the Federal Court Act 1976 (Federal Court Act). Section 31A provides:
[84] [2008] FCA 955
“Summary judgment
(1)The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is prosecuting the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2)The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a)hopeless; or
(b)bound to fail;
for it to have no reasonable prospect of success.
(4)This section does not limit any powers that the Court has apart from this section.” (emphasis added)

Section 31A gives the Court power to enter judgment for the party prosecuting or defending a proceeding if the criteria are met. That is consistent with the Federal Court’s role as the adjudicator of disputes between parties on the basis of pleadings. The Tribunal does not have a role as an adjudicator. Rather, its responsibility is as the reviewer of the merits of an administrative decision according to the law and on the evidence. The differences in their roles account for the most obvious difference between s 42B(1)(b) of the AAT Act and s 31A of the Federal Court Act. That difference is that, unlike s 31A, s 42B(1)(b) gives the Tribunal power to dismiss only the application of the applicant. Consistently with the Tribunal’s responsibility, it does not give the Tribunal power to make a decision affirming the decision-maker’s decision.

Despite that difference, some guidance is to be found in the cases that have considered s 31A. As Gilmour J said in Dandaven v Harbeth Holdings Pty Ltd[85] in relation to whether there is “no reasonable prospect of success”, which lies at the heart of s 31A and is the only issue arising under s 42B(1)(b):
[85] [2008] FCA 955 at [6]
“Success under s 31A does not require a demonstration that the case is hopeless or bound to fail. The following principles are of general application to an application under s 31A:
(a)the Court must be very cautious not to do a party an injustice by summarily dismissing proceedings;
(b) the Court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed;
(c) in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading;
(d) it is not Parliament's intention to require the Court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial;
(e) if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said that where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds that there is ‘no reasonable prospect of success’;
(g)it ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial;
(h)evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects;
(i)in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party.”[86]

[86] [2008] FCA 955 at [6] (paragraph (f) omitted in judgment)

B. Should the time be extended?

In deciding the length of the period for which Ms Buck seeks an extension to make her request for review, I must first consider when notice in writing was given to her. I accept Ms Buck’s evidence given at the hearing that she provided her Statutory Declarations and any information to Mr Shepherd through her solicitor, Mr Jim McCarthy. She agreed, and I accept, that the Commissioner’s decision dated 11 February 1986 would have made its way to her from Mr Shepherd and through Mr McCarthy. That would mean that Ms Buck received notice of the Commissioner’s decision that she was not an eligible spouse in approximately March 1986.

In giving oral evidence, Ms Buck said that Mr McCarthy had told her that she did not qualify for a pension under the CSS because she was not an eligible spouse. She acted on his legal advice. Mr McCarthy would have ceased to act for her, Ms Buck thought, when it had been established that the income was ongoing for the children. Her memory does not entirely accord with the file notes kept by AGRBO for Ms Buck contacted them directly when payments were made only for her daughters and not for her son. That was on 27 March 1986. Mr McCarthy continued to act for her after that time by writing a letter dated 3 April 1986 querying the rate of Mr Empson’s salary at the date of his death and following it with a further letter dated 15 April 1986 passing on information received from Australia Post on that matter.

Under the Superannuation Act, no duty is imposed on the Commissioner to advise the dependants, or those who may be dependants, of an eligible employee, who has died, of any benefit to which they may be entitled. The Commissioner communicated with Mr Shepherd as the executor of the late Mr Empson’s estate. That would generally be an appropriate course to take. In the circumstances of this case, it was also appropriate for Mr Shepherd had acted for Mr Empson in the matrimonial proceedings and had lines of communication to Ms Buck through Mr McCarthy. Ms Buck was not Mr Shepherd’s client or that of Kiddle, Briggs & Willox for he refers to her in his letter dated 17 January 1986 to the Commissioner as the widow of our client and to his understanding that she was financially embarrassed.

I have referred to the letter written by Mr Shepherd at Kiddle, Briggs & Willcox to the Commissioner dated 30 September 1985.[87] He clearly advised that Ms Buck had not been divorced from Mr Epson. Mr Shepherd had asked for advice as to whether Ms Buck would be eligible for a benefit. The Commissioner’s letter dated 27 October 1985 is clearly in response to that letter. He addressed the two avenues by which Ms Buck might achieve eligibility and gave examples of the details and material she would need to show her eligibility for each avenue. Given the nature of the arrangements that existed between Mr Shepherd and Mr McCarthy regarding communications with the Commissioner, I am satisfied that Ms Buck would have been told of the contents of the letter dated 27 October 1985. Ms Buck’s Statutory Declaration was dated 29 November 1985.
[87] See [15] above

Whether Ms Buck was advised that she could request a review of the Commissioner’s decision, is not a question on which I have formed a view. What I have found is that Ms Buck quite rightly contacted AGRBO immediately she received the Commissioner’s letter dated 24 March 1986 and she saw that pensions were to be paid only in respect of her daughters and not her son and that their birth dates were incorrectly recorded.

I accept that circumstances were extremely difficult for Ms Buck and her children following Mr Empson’s death both financially and emotionally. Ms Buck had to undertake night work as a nurse at an aged care home where her children slept in the day room. It was neither a comfortable nor an easy existence. Contrary to her view, however, the correspondence held by the now CSC indicates that Mr Shepherd had tried to assist the family through his efforts to assist their claims for pensions under the CSS. As the executor, I note that his hands would very likely have been tied by the provisions of s 82(2) of the Family Law Act 1975. Except in limited circumstances, which would not seem to have applied on the information I have, the maintenance payments that Mr Empson had been ordered to pay by the Family Court would have ceased on his death.

Her extremely straitened circumstances might have explained why she did not question the AGRBO about her claim for a benefit not being granted. In light of her contact with the AGRBO regarding her children’s benefits after receiving the Commissioner’s letter of 24 March 1986, I find that her circumstances did not prevent her from pursuing their entitlements. Her own entitlements were in no different position and she clearly needed the money. I do not have any medical evidence that would suggest that she was incapacitated so that she could not pursue a review and Ms Buck does not suggest that she was. I am not satisfied that there is an acceptable explanation for her delay in seeking review of the Commissioner’s decision within a few months of the decision let alone the much longer period of 30 years or so that have passed.

The Commissioner was entitled to think that any question of Ms Buck’s entitlement under the CSS had been determined long ago. Until 2017, Ms Buck had given him no indication that she was wishing to re-open the question of her eligibility. In the intervening years, the Commissioner was entitled to assume that she would not do so and to administer the CSS in light of that. I am not suggesting that any pension, to which Ms Buck might have been entitled, would have any impact of any significance at all but the administration of the CSS under the Superannuation Act requires certainty of accounting for the contributions and the outgoings.

Even if there is no prejudice of any consequence in the administration of the CSS, the CSC will suffer prejudice in gathering relevant information and evidence to determine whether Ms Buck came within s 3(2) of the Superannuation Act. She and the children have their memories but the children’s memories at least are focused on the violence. Ms Buck also focuses on what she describes as Mr Empson’s mental illness.

Dr Michael Epstein is a psychiatrist, who has prepared a report based on Ms Buck’s statement, to which I have referred above and which he has restated in its entirety. He has summarised the symptoms of Mr Empson’s behaviour as described by Ms Buck in her statement and has concluded that they are consistent with a diagnosis of Major Depressive Disorder with suicidal and homicidal ideation together with significant symptoms of anxiety. Dr Epstein has expressed the opinion that the medication Mr Empson was prescribed would have been treatment for anxiety and depression. None of the drugs, though, should have been taken for those who suffer from alcohol abuse.

Dr Epstein has not made a definitive diagnosis for he has never been consulted by Mr Empson and is relying only on Ms Buck’s statement. He has written his report carefully to reflect that. Ms Buck has not been able to obtain any medical records from those medical practitioners or hospitals whom she believes treated her husband. There is no reason why the CSC would be in any different position. It will be left with Ms Buck’s statement and a medical report based on that statement that goes no further than a conclusion that the information, including the medication and dosage “suggest” that Mr Empson was suffering from Major Depressive Disorder with suicidal ideation, a moderate anxiety disorder and chronic alcohol abuse.

The CSC will necessarily be prejudiced in considering whether Mr Empson did suffer from mental illness and whether, but for that illness, Mr Empson and Ms Buck would have continued to live together on a permanent and bona fide domestic basis. Questions arise, for example, as to whether the violence displayed by Mr Empson was due to his suffering from a mental illness or whether violence was a part of his nature and not a consequence of mental illness. Ms Buck has clearly said that the separation was due to the violence and that it arose in the late 1970s but the CSC is prejudiced all these years later in exploring the cause of that violence. Without questioning Ms Buck’s integrity and good faith, the CSC cannot simply take her statements at face value. Trauma and time take their effect on memory. Ms Buck’s statement that the violence started towards the end of the 1970s stands in contrast to a statement made by her brother and sister in law dated 14 March 2017 that there had been violent episodes from the first few weeks of the marriage in 1969. They referred to her coming to them during her first pregnancy leading to the birth of her elder daughter in 1970. Her dress was torn and she had lacerations on her neck and arms. Ms Buck would telephone and her brother would try to reason with her husband. On two occasions, she and the children moved in with her brother and sister in law.[88]
[88] T documents; T62

Another relevant factor in any consideration of the issues arising under s 3(2) would be the fact that Ms Buck and Mr Empson had sold the family home and the proceeds divided between them. Orders had been made regarding the maintenance of the children and the payment of a credit card account. For all practical purposes, their joint life had come to an end when the Family Court gave formal effect to the matters that they had agreed upon. Arguably, they were no longer living together because they had resolved not to do so and the house in which they had lived together had been sold.

The reason for their separating might be characterised as violence whether caused by mental illness or not but the reason for their no longer living together was their agreement not to do so and the consequences of their agreement. It is the reason at the time of Mr Empson’s death that is the relevant time and not the earlier time of their separation. That follows from a reading of s 3(2) in light of paragraph (a) of the definition of “spouse” in s 3(1) of the Superannuation Act. Paragraph (a) requires that a person be legally married to the deceased person at the time of his death, as Ms Buck was to Mr Empson. It also requires that the person be living with the person on a permanent and bona fide domestic basis as at the date of death. Section 3(2) ameliorates the requirement that the two people live together on a permanent and bona fide domestic basis by recognising that there may be a temporary absence of one of them resulting from illness or infirmity of the other. The relevant time to assess whether there is an absence of one, whether it is a temporary absence and whether any temporary absence results from illness or infirmity is the time of death of the eligible employee. This conclusion is consistent with the reasoning of Morling J in Pearce v Hornsey.[89] On the evidence that I have, I find that the prospects of her succeeding would be slight.
[89] (1991) 29 FCR 239; Morling J

As for paragraph (b) of the definition of “spouse”, the CSC is in the same position in determining whether or not Ms Buck was wholly or substantially dependent upon Mr Empson at the time of his death. The evidence shows that he was no longer paying the mortgage for the house had been sold some six months before his death. Ms Buck has said that he was paying for the mortgage and the “big bills” before his death but her memory is flawed regarding the mortgage. She is clear that Mr Empson was not paying any maintenance to her on the basis of the Family Court’s orders. On the evidence that I have, I find that the prospects of Ms Buck’s establishing that she was a “spouse” for the purposes of the definition in s 3(1) are slight.

Having regard to all of these matters, I have concluded that too many years have been allowed to pass without the Commissioner’s decision being challenged. Decisions made under superannuation scheme established under an enactment must be made on relevant and probative material. There must be opportunities for the CSC to make relevant enquiries to ensure that each person is entitled to the benefit provided for in the Superannuation Act. That ensures that each eligible employee and their spouses and children are treated equally and fairly. Apart from Ms Buck and her children, those who could have provided relevant information to the Commissioner at the time, and now the CSC, have died or their records destroyed. The passage of time has meant that the CSC can no longer carry out appropriate enquiries to test the evidence or come to an informed decision.

For these reasons, I affirm the decision made by the CSC on 14 August 2017 and affirmed on 27 February 2018 to refuse to extend the prescribed period of 30 days within which Ms Buck might request review of a decision dated 11 February 1986.

I certify that the preceding ninety four (94) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie

[sgd]........................................................................
Associate
Dated: 31 October 2019

Heard:	1 March 2019
Counsel for the Applicant:	Mr Andrew Donald
Solicitor for the Applicant:	Ms Patsy Toop Bowman & Knox Lawyers
Counsel for the Respondent:	Ms Roslyn Kaye
Solicitor for the Respondent:	Ms Ingrid Weinberg Allens