Commissioner for Superannuation v Ashmore - [2001] FCA 666

FEDERAL COURT OF AUSTRALIA
Commissioner for Superannuation v Ashmore [2001] FCA 666
ADMINISTRATIVE LAW - Administrative Appeals Tribunal - hearing before single member - respondent gave oral evidence - tribunal reconstituted with three members - respondent gave no further evidence - procedural fairness - whether tribunal can make findings on creditworthiness - waiver of right to give oral evidence - superannuation - late election to preserve benefits of 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 - considerations to be taken into account
Superannuation Act 1976 (Cth) ss 137, 154, 157
Administrative Appeals Tribunal Act 1975 (Cth) s 39, 44
Commissioner of Superannuation v Boardman (1994) 50 FCR 236 referred to
COMMISSIONER FOR SUPERANNUATION v CAROLYN ASHMORE
N 87 of 2001
SUNDBERG, EMMETT & FINKELSTEIN JJ
25 JUNE 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 87 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

COMMISSIONER FOR SUPERANNUATION
APPELLANT

AND:

CAROLYN ASHMORE
RESPONDENT

JUDGES:

SUNDBERG, EMMETT & FINKELSTEIN JJ

DATE OF ORDER:

25 JUNE 2001

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1. The appeal be allowed.
2.The orders made on 15 December 2000 be set aside and in lieu thereof order that the application be dismissed with costs.

3. The respondent pay the appellant’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 87 OF 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

COMMISSIONER FOR SUPERANNUATION
APPELLANT

AND:

CAROLYN ASHMORE
RESPONDENT

JUDGES:

SUNDBERG, EMMETT & FINKELSTEIN JJ

DATE:

25 JUNE 2001

PLACE:

SYDNEY

REASONS FOR JUDGMENT
THE COURT:

The respondent, Carolyn Ashmore (“Ms Ashmore”), was a member of the Commonwealth Public Service. On 1 July 1976, being an eligible employee under the Superannuation Act 1976 (Cth) (“the Act”), she became a member of the Commonwealth Superannuation Scheme (“the Scheme”). She resigned from the Commonwealth Public Service with effect from 1 June 1998 and thereby ceased to be an eligible employee. On 19 July 1998 she applied for a refund of her contributions to the Scheme and on 8 August 1998 an amount of $30,220 was paid into an approved deposit fund nominated by her.
Section 137(1) of the Act provides that, not later that 21 days after a person ceases to be an eligible employee, that person may elect that Division 3 of Part IX of the Act apply to that person. Division 3 provides for the preservation of rights under the Act of persons who cease to be eligible employees. On 28 May 1993, Ms Ashmore wrote to the respondent, the Commissioner of Superannuation (“the Commissioner”) seeking, in effect, to make an election under s 137(1) out of time. For that to be done, it would have been necessary…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Commissioner for Superannuation v Ashmore

Details

AGLC: Commissioner for Superannuation v Ashmore [2001] FCA 666
Case: [2001] FCA 666
Decision Date: 25 JUNE 2001

CaseChat Overview and Summary

The case of Commissioner for Superannuation v Ashmore involved a dispute regarding the merits of a late election under the Superannuation Act. The primary issue before the court was whether the Tribunal had erred in its consideration of the potential financial prejudice to the applicant, Ms Ashmore, if the Commissioner did not exercise his discretion in her favour. The case originated in the Federal Court of Australia and was appealed to a higher court.

The central legal issue was whether the Tribunal was required to consider any financial prejudice Ms Ashmore might suffer if her late election was not allowed. The court examined the relevant provisions of the Act and found that while the Commissioner must be satisfied that it is desirable to recognise the election, the specific considerations to be taken into account were not explicitly stated. Therefore, it was largely within the Commissioner’s discretion to determine the relevant factors and their importance. The court held that for a ground of failure to consider a relevant factor to be valid, it must be shown that the decision-maker was bound to consider a particular factor under the circumstances. The court concluded that there was no inherent requirement for the Tribunal to consider financial prejudice and that Ms Ashmore’s decision in 1994 to reject the option to preserve her benefits played a significant role in the Tribunal’s reasoning.

The court found that the Tribunal had not erred in its assessment of the merits of the application under s 157(1) of the Act. The Tribunal had concluded that the perceived investment benefits and Ms Ashmore's previous informed decisions were insufficient to justify a late election. Therefore, the court held that the Tribunal had not failed to consider relevant factors and dismissed the appeal. In its final orders, the court allowed the appeal, set aside the orders made on 15 December 2000, dismissed the application with costs, and ordered that the respondent pay the appellant’s costs.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders made on 15 December 2000 be set aside and in lieu thereof order that the application be dismissed with costs.

3. The respondent pay the appellant’s costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The Tribunal’s reference to “investment benefits” is a little obscure. However, it must be considered in the light of the contentions in Ms Ashmore’s statement of facts and contentions, the evidence that was before the Tribunal and the submissions made to the Tribunal by her counsel. Paragraph 34 of the Tribunal’s reasons must be read as a conclusion by the Tribunal that the possible financial prejudice that Ms Ashmore would suffer, if the discretion were not exercised in her favour, was insufficient to tip the scales in her favour, having regard to her informed decision in 1988 to reject the option to preserve her benefits in the Scheme. Thus, the merits of any application pursuant to s 157(1) were considered by the Tribunal. It took account of financial prejudice but concluded that it was not decisive. In the circumstances, no error on the part of the Tribunal in that regard has been demonstrated. CONCLUSION The appeal should be allowed and the orders of the primary judge of 15 December 2000 should be set aside. In lieu thereof there should be an order that the appeal to the Federal Court be dismissed with costs. Ms Ashmore should pay the Commissioner’s costs of the appeal.

Ratio Decidendi

Legal Principle Established

Ms Ashmore was prepared to make herself available to answer questions. The only fair construction to be put on the final paragraph of the letter is an offer to provide answers that had not, to that point, been asked. There is no qualification of the nature read into the paragraph by the primary judge. The paragraph is simply not expressed, and cannot be construed, as such a qualification of her agreement for the matter to proceed on the basis that the Tribunal make its determination upon the transcript of the first hearing. His Honour erred in holding that it did. FAILURE TO CONSIDER RELEVANT CONSIDERATIONS The only decision under review by the Tribunal was the Commissioner’s decision under s 154(2) not to allow a further period within which to request reconsideration of the Late Election Decision. It was common ground that, in reviewing that decision, the Tribunal should have regard to the merits of the application under s 157(1). The question, however, is whether, in considering the merits of the application under s 157(1), the Tribunal was obliged to have regard to any prejudice that might be suffered by Ms Ashmore if the Commissioner did not exercise his discretion under s 157(1) favourably to her. Section 157(1) does not specify the matters that must be considered by the Commissioner in making a decision under that section. Under the section, the Commissioner must be “satisfied that in all the circumstances of the case it is desirable that the election [out of time] should be recognized”. Where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him or her by the parties, to determine which matters he or she regards as relevant and the comparative importance to be accorded to matters which he or she so regards. The ground of failure to take into account a relevant consideration will only be made good if it be shown that the decision-maker has failed to take into account a consideration which he or she was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide – Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363 at 375. Ms Ashmore does not contend that there was an inherent requirement to have regard to any prejudice but says that, having regard to the way in which the matter was put to the Tribunal, it was incumbent upon the Tribunal to deal with the question of prejudice. In particular, Ms Ashmore says that the Tribunal should have had regard to:· her potential loss of financial benefit;· the exacerbation of the prejudice that would flow to Ms Ashmore by reason of the loss of that financial benefit in circumstances where she had been diagnosed with multiple sclerosis and her financial security was impaired. Having found that Ms Ashmore had made a conscious decision in 1994 not to take the matter further, the Tribunal went on to say as follows:“34. There is nothing in the material before us which persuades us that there has been some supervening event which makes the correct or preferable decision one to permit [Ms Ashmore] to now make a late election. The mere fact perceived investment benefits have not materialised is, in our view, insufficient to tip the scales in this matter. That the decisions previously made by [Ms Ashmore] were made with full knowledge of her various options at the time render this case one where it cannot be said that it is desirable to permit a late election.”That was said in the context of considering the merits of any question that might arise under s 157(1) of the Act. It answers Ms Ashmore’s claim that the Tribunal should have had regard to her loss of benefit.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 87 OF 2001

BETWEEN:	COMMISSIONER FOR SUPERANNUATION APPELLANT
AND:	CAROLYN ASHMORE RESPONDENT
JUDGES:	SUNDBERG, EMMETT & FINKELSTEIN JJ
DATE OF ORDER:	25 JUNE 2001
WHERE MADE:	SYDNEY

JUDGES:	SUNDBERG, EMMETT & FINKELSTEIN JJ
DATE:	25 JUNE 2001
PLACE:	SYDNEY