Evans v Superannuation Complaints Tribunal

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FEDERAL COURT OF AUSTRALIA

Evans v Superannuation Complaints Tribunal [2002] FCA 1449

SUPERANNUATION – application for late election to preserve superannuation benefits under Superannuation Act 1976 (Cth) s 157 – earlier application for late election refused – further application for late election – whether more than one election may be made under s 137 – whether power given to second respondent by s 157 to consider recognising late election may be exercised from time to time or only once

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
Superannuation Act 1976 (Cth) ss 17, 27A, 27C, 137(1), 153AH, 153AM, 153AP, 154, 157
Superannuation Legislation Amendment Act 1984 (Cth) s 47
Superannuation Industry (Supervision) Act 1993 (Cth)
Superannuation (Resolution of Complaints) Act 1993 (Cth) ss 14, 37
Acts Interpretation Act 1901 (Cth) s 33(1)
Administrative Appeals Tribunal Act 1975 (Cth) s 29(7)

Colonial Mutual Life Assurance Society Limited v Brayley [2002] FCA 1333 cited
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 187 ALR 117 referred to
Export Development Grants Board v EMI (Australia) Ltd (1985) 9 FCR 269 cited
Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429 referred to
Re Claasz and Commissioner for Superannuation (1995) 38 ALD 62 not followed

ROGER KEITH EVANS v SUPERANNUATION COMPLAINTS TRIBUNAL AND CSS BOARD

A 71 of 2001

BRANSON J
26 NOVEMBER 2002
SYDNEY (HEARD IN CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA

ACT DISTRICT REGISTRY

A 71 of 2001

BETWEEN:

ROGER KEITH EVANS
APPLICANT

AND:

SUPERANNUATION COMPLAINTS TRIBUNAL
FIRST RESPONDENT

CSS BOARD
SECOND RESPONDENT

JUDGE:

BRANSON J

DATE OF ORDER:

26 NOVEMBER 2002

WHERE MADE:

SYDNEY (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the costs of the second respondent.

IN THE FEDERAL COURT OF AUSTRALIA

ACT DISTRICT REGISTRY

A 71 of 2001

BETWEEN:

ROGER KEITH EVANS
APPLICANT

AND:

SUPERANNUATION COMPLAINTS TRIBUNAL
FIRST RESPONDENT

CSS BOARD
SECOND RESPONDENT

JUDGE:

BRANSON J

DATE:

26 NOVEMBER 2002

PLACE:

SYDNEY (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

INTRODUCTION

  1. By an application dated 11 March 2002 made under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) the applicant seeks judicial review of a ‘decision’ of the first respondent (‘the Tribunal’) dated 11 June 2001. By letter dated 14 November 2001 the Tribunal advised the applicant’s lawyers that it lacked jurisdiction to entertain a complaint made by the applicant concerning a decision of the second respondent (‘the Board’). The applicant further seeks the issue of a writ of mandamus directed to ‘the Respondent’ and certain declaratory relief.

  2. The grounds upon which the application is made which were relied on at the hearing are:

    ‘(d)The Applicant contends that the Respondent [sic] erred in law in determining that if the application of 21 July 1996 is a valid application, then Comsuper is precluded from considering that application by reason of the doctrine of “functus officio”;

    (e)The Applicant contends that the Respondent [sic] erred in law…

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Details
Case
[2002] FCA 1449
Decision Date

CaseChat Overview and Summary

In the case of Evans v Superannuation Complaints Tribunal, the applicant sought relief from the Tribunal in relation to a decision made by the Commissioner for Superannuation, which confirmed an earlier decision of a delegate that the applicant's late election for preservation of superannuation rights should not be recognised. The applicant contended that the decision was incorrect and sought a reconsideration of his case. The Tribunal, however, found that it lacked jurisdiction to deal with the applicant’s complaint, as the decision in question was a pre-regulation decision and the Board did not have the power to review such decisions.

The primary legal issue before the court was the interpretation of the Superannuation Act 1976 (Cth), specifically whether the power given to the Board (and previously given to the Commissioner) under s 157 of the Act could be exercised more than once. The court considered the legislative intent behind the Act, particularly the requirement in s 137(1) that an election under that section be made within 21 days after the person ceases to be an eligible employee. The court concluded that the proper construction of the Act suggested that an election under s 137(1) may only be made once. The court also emphasised the importance of finality in administrative decisions, as well as the potential impact on the management and investment of the superannuation fund if there was uncertainty regarding multiple elections.

The court found that the applicant could not make a further late election under s 137(1) of the Act, as the Board determined that it did not have the satisfaction required by s 157(1). Additionally, the court noted that the question of whether a person who has made an election under s 137(1) can require the Commissioner or the Board to consider their case on more than one occasion was unrelated to the issue of whether an administrative decision-maker may reconsider its earlier decision on becoming aware of an error.

As a result, the court dismissed the application and ordered the applicant to pay the costs of the second respondent.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay the costs of the second respondent.

Background

Background to the litigation

For the reasons set out below I have formed the view that the application should be dismissed.BACKGROUND FACTS The applicant, who was born on 4 March 1939, became an ‘eligible employee’ within the meaning of the Superannuation Act 1976 (Cth) (‘the Act’) on 29 June 1967. He remained an ‘eligible employee’ until his resignation from a position in the Department of Prime Minister and Cabinet on 17 February 1981. On 18 February 1981 the applicant signed before a barrister as witness an application form whereby he applied for a refund of his accumulated contributions under the provisions of the Act. He deleted, by striking them through, the alternative options expressed on the form as: ‘apply for payment of a lump sum benefit’, and ‘elect for preservation of superannuation rights’. The applicant again became an ‘eligible employee’ on 14 November 1983. He remains an ‘eligible employee’. By letter dated 22 June 1989 addressed to the Australian Government Retirement Benefits Office the applicant indicated that he wished to make a late election to preserve his previous superannuation entitlements. On 9 May 1990 a delegate of the Commissioner for Superannuation (‘the Commissioner’) determined that he was not satisfied:‘that in all the circumstances of the case it is desirable that the election under subsection 137(1) made by Mr Evans on 22 June 1989 should be recognised.’ At the request of the applicant the decision of the delegate was reconsidered under s 154 of the Act. The decision was confirmed on 27 June 1991. The decision‑maker noted that while he would have preferred to delay reaching a decision on the reconsideration to obtain guidance from a pending decision of the Administrative Appeals Tribunal (‘AAT’) in a matter with points of similarity with the applicant’s case, the applicant had insisted that he proceed to an immediate decision. By letter dated 21 July 1996 addressed to the Commissioner the applicant indicated that he had learnt that the AAT hearing referred to above had resulted in a positive outcome for the applicant in that case thus setting a precedent for his own case. He requested that his application for late election be considered in the light of the decision of the AAT. The applicant received advice from an officer of the Board that the applicant should seek relief from the AAT and that this would involve him in seeking an extension of time to lodge an application for review. On 5 January 2000 the applicant applied to the AAT for review of the decision of 27 June 1991 whereby the determination of the delegate of the Commissioner that he was not satisfied that in all of the circumstances it was desirable that the applicant’s late election should be recognised was confirmed. He also applied for an extension of time within which to lodge his application for review. It appears that the application for an extension of time was not pursued. The applications were ultimately deemed to have been withdrawn.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BRANSON J
The powers of the Tribunal when reviewing a decision of a trustee of a fund that is the subject of a complaint are set out in s 37 of the SRC Act. I have recently given consideration to the nature and extent of those powers in Colonial Mutual Life Assurance Society Limited v Brayley [2002] FCA 1333.DECISION OF THE TRIBUNAL The Tribunal took the view, based on legal advice, that it lacked jurisdiction to deal with the applicant’s complaint. The Tribunal was satisfied that the decision that was the subject of the applicant’s complaint was the decision of the Commissioner made under s 154 of the Act on 27 June 1991, i.e. that the decision that was the subject of the complaint was a ‘pre-regulation’ decision. It did not accept that the decision that was the subject of the applicant’s complaint was the ‘decision’ referred to in the letter from Comsuper dated 25 May 2000 which advised that:‘The Commissioner, as well as the CSS Board, are therefore functus officio as regards the issue of Mr Evans’ late election for preservation ….’THE ISSUE The central issue in this proceeding is one of statutory construction. It is whether on the proper construction of the Act the power given to the Board (and previously given to the Commissioner) by s 157 of the Act may be exercised from time to time or only once.CONSIDERATION Section 137(1) provides for a person who has ceased to be an eligible employee positively to elect that Division 3 apply in relation to him or her. It would therefore appear that the applicant did not on 18 February 1981 make an election under s 137(1) even though he deleted the option ‘elect for preservation of superannuation rights’ from the form that he signed on that day (see [6] above). Had the applicant made the election for which s 137(1) provides within the period allowed no question of a second election could have arisen; the election would have automatically resulted in the preservation of his superannuation rights. However, where a late election under s 137(1) is made, the election will only be recognised where the Board so directs under s 157(1). Although s 157(1) of the Act allows a late election under s 137(1) to be treated as if it had been made within the period approved, the requirement of s 137(1) of the Act that an election under that section be made ‘not later than 21 days after the person … ceases to be an eligible employee’ is suggestive of a legislative intention that an election under the subsection may only be made once. Additionally, as Gleeson CJ observed in Minister for Immigration and Multicultural Affairs v Bhardwaj at [8]:‘The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration. …’ Elections made under s 137(1) and other provisions of the Act have an impact on the Fund. While the impact of any one election is likely to be slight, a lack of certainty generally as to whether elections under the subsection are to be made could be expected to impact on the management and investment of the Fund.

Ratio Decidendi

Legal Principle Established

Established by: BRANSON J

The central issue in this proceeding is one of statutory construction. It is whether on the proper construction of the Act the power given to the Board (and previously given to the Commissioner) by s 157 of the Act may be exercised from time to time or only once.CONSIDERATION Section 137(1) provides for a person who has ceased to be an eligible employee positively to elect that Division 3 apply in relation to him or her. It would therefore appear that the applicant did not on 18 February 1981 make an election under s 137(1) even though he deleted the option ‘elect for preservation of superannuation rights’ from the form that he signed on that day (see [6] above). Had the applicant made the election for which s 137(1) provides within the period allowed no question of a second election could have arisen; the election would have automatically resulted in the preservation of his superannuation rights. However, where a late election under s 137(1) is made, the election will only be recognised where the Board so directs under s 157(1). Although s 157(1) of the Act allows a late election under s 137(1) to be treated as if it had been made within the period approved, the requirement of s 137(1) of the Act that an election under that section be made ‘not later than 21 days after the person … ceases to be an eligible employee’ is suggestive of a legislative intention that an election under the subsection may only be made once. Additionally, as Gleeson CJ observed in Minister for Immigration and Multicultural Affairs v Bhardwaj at [8]:‘The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration. …’ Elections made under s 137(1) and other provisions of the Act have an impact on the Fund. While the impact of any one election is likely to be slight, a lack of certainty generally as to whether elections under the subsection are to be made could be expected to impact on the management and investment of the Fund. I conclude that on the proper construction of the Act it is only open to a person to make one election under s 137(1) of the Act. That is, for present purposes, if an election is made later than 21 days after the person ceases to be an eligible employee and the Board determine that it does not have the satisfaction referred to in s 157(1) it is not open to the person to make a further late election; the election of which s 137(1) speaks has been made. The question remains, however, whether a person who has made an election under s 137(1) can require the Commissioner or the Board, as the case may be, to consider on more than one occasion whether the Commissioner or the Board is satisfied that in all of the circumstances of the case it is desirable that the election be recognised. This question is unrelated to the issue of whether an administrative decision‑maker, on becoming aware that by reason of error it has failed to discharge its statutory function, may reconsider its earlier decision (see Minister for Immigration and Multicultural Affairs v Bhardwaj). No error touching on the decision of 27 June 1991 made under s 154 of the Act, which confirmed the earlier determination of a delegate of the Commissioner that he was not satisfied as required by s 157(1), was sought to be relied upon.