Grice and Respondent

[2022] AATA 259

Grice and Respondent [2022] AATA 259 (11 January 2022)

Division:GENERAL DIVISION

File Number(s):               2021/9408

Re:Barry Grice

APPLICANT

AndRespondent

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Date of decision:               11 January 2022

Date of written reasons:         15 February 2022

Place:Brisbane

Pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975, the Tribunal dismisses this application.

.............................[SGD].........................................

Deputy President Dr P McDermott RFD

CATCHWORDS

PRACTICE AND PROCEDURE – Jurisdiction – Superannuation legislation – Transitional provisions – Application for review of a decision of the Commissioner of Superannuation – Whether the decision of the Commissioner of Superannuation is reviewable by the Tribunal – No jurisdiction to review decision – Application for review dismissed.

LEGISLATION

Administrative Appeals Tribunal Act 1975

Superannuation Act 1976

Superannuation Act 1990

Superannuation Act 1922

Superannuation Legislation (Consequential Amendments and Transitional Provisions) Act 2011

CASES

Barry Grice and Commissioner for Superannuation

(Administrative Appeals Tribunal, Deputy President Hack SC, 2013/6857, unreported, date of written reasons,

24 February 2014).

Barry Frederick Grice and Commissioner of Superannuation [1998] AATA 531

Grice and Commissioner for Superannuation [1997] AATA 959

Liddle and Commissioner for Superannuation (1991) 25 ALD 307

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

15 February 2022

BACKGROUND

1. There is no dispute as to the facts concerning the employment of the applicant. On
   21 April 1976 the applicant became a contributor under the Superannuation Act 1922 when he became an employee of the Postmaster-General. In July 1976 the applicant, as an employee of Telecom, became an eligible employee under the Superannuation Act 1976 (the “1976 Act”). On 13 March 1984 the applicant tendered his resignation from Telecom.

2. After the applicant tendered his resignation, he was examined by a Commonwealth Medical Officer who found the applicant fit for continued duty in another section of Telecom. On
   10 April 1984 Telecom, advised the applicant that a Commonwealth Medical Officer considered that the applicant was fit for continued duty and he was advised that his resignation from Telecom would take effect on the close of business on 13 March 1984.

3. On 22 June 1984 the applicant was paid the sum of $9,375.49 being a lump sum of his accumulated contributions.[1] That payment of a lump sum of his accumulated contributions was made under section 80(1) of the 1976 Act. Under the terms of this subsection the applicant was paid his accumulated contributions out of the fund. The payment of the accumulated contributions was made after the applicant completed a Superannuation Refund Form 2A.[2]

   [1]     Barry Frederick Grice and Commissioner of Superannuation [1998] AATA 531 at [5].

   [2]     Barry Frederick Grice and Commissioner of Superannuation [1998] AATA 531 at [9].

4. On 10 September 1997 this Tribunal decided that the Tribunal did not have jurisdiction in relation to an application that he lodged on 7 April 1997 in respect of a decision which he asserted had been made on or about 12 March 1997.[3] Senior Member Beddoe remarked:[4]

   The issue which arose in the hearing is whether there had been a refusal by the respondent Commissioner to make a decision on a request for reconsideration made by the applicant on 7 February 1997 (T19/93-100) in so far as that request related to the decision of the Commissioner to pay the benefit on 22 June 1984. That request was out of time and will only become a valid request when the Commissioner grants an extension of time (s154(2)).

   It follows that there cannot be a refusal in terms of s3(3) of the AAT Act which would thereby constitute a decision which is a reviewable decision until the Commissioner either extends time and then refuses to make the reviewable decision or refuses the extension of time and affirms that decision upon reconsideration etcetera.

   [3]     Grice and Commissioner for Superannuation [1997] AATA 959.

   [4]     Grice and Commissioner for Superannuation [1997] AATA 959 at [11]-[12].

5. On 15 July 1998 a Full Bench[5] of this Tribunal determined that the Tribunal did not have jurisdiction to determine the application that he lodged on 18 September 1997. The application was made in respect of a decision of the delegate of the then Commissioner on
   26 August 1997made under section 154(4) of the 1976 Act. The terms of that decision of the delegate was to:[6]

   ... CONFIRM the decision, implicit in correspondence of 13 March 1995, not to allow [the applicant]  a period further to the 30 day period prescribed in subsection 154(2) in which to request reconsideration of the decision, implicit in action taken on 22 June 1984 to pay him a refund of his accumulated contributions in accordance with section 80 of the Act, that for the purposes of subsection 7(1) of the Act, when he ceased to be an eligible employee on 13 March 1984 he was not retired, or his services were not otherwise terminated, on the ground of physical or mental incapacity to perform his duties and hence could not be regarded as having been retired on the ground of invalidity and as such entitled to an invalidity benefit pursuant to section 66.

   [5]     Comprised of Senior Member Beddoe, Members Palvin and Kennedy.

   [6]     Barry Frederick Grice and Commissioner of Superannuation [1998] AATA 531 at [17].

6. The Full Bench determined that the Tribunal did not have jurisdiction to determine the application for the following reasons:[7]

   In this matter the request for review to the Commissioner was made several years after the 1984 decision. The Commissioner did not respond to the applicant's request of February 1995 so that the matter proceeded upon a deemed "refusal" to grant an extension of time although there was no such consideration by the Commissioner and no formal notice of the refusal. By agreement between the parties in previous proceedings, the Commissioner undertook to make a reconsideration decision of the deemed "refusal". In hindsight, it may have been more appropriate for the Commissioner to make an initial review decision in writing in response to the request of February 1995 prior to the reconsideration decision of 26 August 1997. As there is no time limit as to when the Commissioner must make a decision under s 154 of the Act following the receipt of a request it may well be considered that such a decision has not in effect been made in order to allow the operation of s 154 and the jurisdiction of this Tribunal. If this is the case then the Tribunal would have no jurisdiction to hear the matter.

   [7]     Barry Frederick Grice and Commissioner of Superannuation [1998] AATA 531 at [31].

7. The Full Bench also determined that if the Tribunal did have jurisdiction the decision would have been to affirm the decision under review, stating:[8]

   We therefore find that the Tribunal does not have jurisdiction and in the alternative if jurisdiction exists the decision under review should be affirmed.

   [8]     Barry Frederick Grice and Commissioner of Superannuation [1998] AATA 531 at [53].

8. After the decision of the Tribunal was handed down the applicant wrote to the Tribunal on 16 July 1998 to express his concern about the decision of the Tribunal. On 27 July 1998 the Registrar of the Tribunal wrote to the applicant to advise him that if he wished to take the matter further, he has a right of appeal to the Federal Court of Australia on a question of law. The applicant does not appear to have ever exercised this right of appeal.

9. On 23 December 2013 the applicant lodged in the Tribunal a further letter of review, which was regarded as an application, to complain about the decision of the Tribunal on

   
   

   15 July 1998. On 28 January 2014 Deputy President Hack SC concluded that the applicant had not demonstrated that there was a reviewable decision which is capable of being reviewed, stating:[9]

   When asked in further correspondence of 14 January 2014 whether the hearing of jurisdiction clashed with particular appointments he advised that it did not and affirmed his view that it was inappropriate for the hearing to proceed today. [The applicant] has not appeared today, as his letter of 16 January indicated that he would not.

   The application lodged by [the applicant] in 1997 was dealt with by decision of the Tribunal of 15 July 1998. By that decision the Tribunal determined that it was not satisfied that it had jurisdiction and in the alternative assuming that it did have jurisdiction the Tribunal would have affirmed the decision under review.

   There is no reason to doubt that a Tribunal which has failed to discharge its statutory function may re-visit that which it has not done however the reading of the earlier decision leaves me in no doubt that the Tribunal on that occasion did discharge its function. It was open to [the applicant], had he not been satisfied with the conclusion of the Tribunal that there was no jurisdiction, to appeal that decision to the Federal Court of Australia or to seek judicial review of that decision. [The applicant] was invited to show the Tribunal that the decision he seeks to have reviewed is reviewable. I am not satisfied that he has demonstrated the decision is reviewable or that there is a reviewable decision capable of being reviewed.   

   [9]     Barry Grice and Commissioner for Superannuation (Administrative Appeals Tribunal, Deputy President Hack SC, 2013/6857, unreported, date of written reasons, 24 February 2014), at [4]-[6].

10. Deputy President Hack SC dismissed the application under section 42A(4) of the Administrative Appeals Tribunal Act 1975.

11. On 11 January 2022, acting under section 42A(4) of the Administrative Appeals Tribunal Act 1975,  I dismissed the present application of the applicant who lodged an application on 25 November 2021 in which he sought review of a decision of the then Commissioner for Superannuation made on 22 June 1984. Because the applicant lodged a copy of a decision of the Commonwealth Superannuation Commission dated 28 October 2021 with his application, I also considered whether the latter decision disclosed a reviewable decision.

12. While it is apparent that the applicant sought review of the decision made on 22 June 1984, I considered it prudent to consider whether the decision made on 28 October 2021 was a reviewable decision because the applicant had also made submissions that this decision was a reconsideration of another earlier decision. In my notice of dismissal, I stated that both decisions were not reviewable decisions. The applicant has sought reasons for my dismissal of the present application. I now provide these reasons.

    APPLICATION

13. On 25 November 2021, the applicant lodged an application for a review of a decision of the Commissioner for Superannuation (the “Commissioner”) dated 22 June 1984. In his application form, the applicant stated that on “22 June 1984 the Commissioner for Superannuation exercised his s 80(1)(b) power to decide not to pay the s 66 invalidity, and then refunded contributions.” The applicant further stated in his application form:

    On 3 November 2021 the applicant received correspondence from the Commonwealth Superannuation Corporation (the CSC) dated 26 October 2021 (enclosed) which was [a] s 154(5) “notice” that the CSC had reconsidered the 1984 decision under 154(4) and had confirmed the 1984 exercise of the s 80(1)(b) power, that being the 1984 decision.

14. The applicant enclosed with his application a copy of a letter from the Commonwealth Superannuation Corporation dated 26 October 2021. The applicant did not enclose with his application a copy of a decision of the Commissioner dated 22 June 1984. The applicant also enclosed a statement in support of his application.

15. On 21 December 2021, an officer of the Tribunal’s registry wrote to the applicant by letter stating: “We cannot find any law that says you can make an application to us about the decision.” In that letter, the applicant was invited to tell the Tribunal why he thinks the Tribunal has jurisdiction to review the decision.

16. By his letters dated 26 and 30 December 2021, the applicant has made submissions on the Tribunal’s jurisdiction in this matter.

17. The applicant submitted that the Tribunal has jurisdiction by virtue of section 154(6) of the 1976 Act. Section 154 of the 1976 Act was repealed on 1 July 2011 by operation of item 193 of sch 1 of the Superannuation Legislation (Consequential Amendments and Transitional Provisions) Act 2011 (the “Amendment Act”). However, items 15(6)-(7) of Schedule 2 of the Amendment Act are transitional provisions which preserve the right of review of decisions made under section 154 of the 1976 Act.

18. Item 15(6) of Schedule 2 of the Amendment Act states:

    Despite the repeal of section 154 of the Superannuation Act 1976 by Schedule 1 to this Act, an application may be made to CSC under that section for review of a decision by the Commissioner for Superannuation, or a delegate of the Commissioner, made before commencement under:

    (a)  that Act; or

    (b) the Superannuation Act 1922; or

    (c)  regulations made under either of those Acts;

    and for this purpose, a reference to the Commissioner in that section is to be read as a reference to CSC.

19. Item 15(7) of Schedule 2 of the Amendment Act states:

    Despite the repeal of section 154 of the Superannuation Act 1976 by Schedule 1 to this Act, an application may be made to the Administrative Appeals Tribunal under that section for review of a decision by the Commissioner of Superannuation, or a delegate of the Commissioner, made before commencement under:

    (a)  that Act; or

    (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.

20. Section 154 of the 1976 Act provided:

    (1)In this section:

    decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.

    reviewable decision means a decision of the Commissioner, or a delegate of the Commissioner, under this Act, under the superseded Act or under the regulations made under either of those Acts, and includes a decision of the Superannuation Board, or a delegate of the Superannuation Board (other than a decision under section 141 of the superseded Act).

    Superannuation Board means the Superannuation Board established by the superseded Act.

    (2)A person affected by a reviewable decision who is dissatisfied with the decision may, by notice in writing given to the Commissioner within the period of 30 days after the day on which the decision first comes to the notice of the person, or within such further period as the Commissioner allows, request the Commissioner to reconsider the decision.

    (3)There shall be set out in the request the reasons for making the request.

    (4)Upon receipt of the request, the Commissioner shall reconsider the decision and may confirm or revoke the decision or vary the decision in such manner as the Commissioner thinks fit.

    (5)Where the Commissioner confirms, revokes or varies a decision, the Commissioner must, by notice in writing served on the person who made the request, inform the person of the result of the reconsideration of the decision and the reasons for confirming, revoking or varying the decision, as the case may be.

    (6)Applications may be made to the Administrative Appeals Tribunal for review of reviewable decisions that have been confirmed or varied under subsection (4) and for review of decisions of the Superannuation Board, or delegates of the Superannuation Board, made under section 141 of the superseded Act.

21. The applicant has submitted that, within the meaning of section 154(2) of the 1976 Act, he provided “notice” to the Commissioner on 30 April 1984 by writing a letter to the Secretary of Telecom and the Minister of Communications in which he challenged “the process which took place which involved loss of employment and entitlements, a loss which included loss of superannuation entitlements.” The applicant has not filed with the Tribunal a copy of his letter of 30 April 1984.

22. The applicant remarked that the Commonwealth Superannuation Corporation exercised the “s 154(4) reconsideration power” to “confirm the 1984 reviewable decision” and that its letter dated 26 October 2021 “constitutes ‘notice’ within the meaning of s 154(5) of the 1976 Super Act.” The applicant also submitted that the Commissioner provided a notice dated 2 April 1997 of a reconsideration of the 1984 decision within the meaning of section 154(5) of the 1976 Act, however, the applicant has not filed with the Tribunal a copy of such notice.

23. The applicant also remarked that the Commonwealth Superannuation Corporation, in its letter “advised it had thoroughly reviewed the material with respect to the 1984 exercise of s 80(1)(b) and found such exercise was correct, and correct payment was made at the time.”

24. I do not consider that the decision of 22 June 1984 to pay the applicant a lump sum of his accumulated contributions is a reviewable decision within the meaning of section 154(2) of the Act. That payment of a lump sum of his accumulated contributions was made under section 80(1) of the 1976 Act after the applicant completed a refund form. In any event, any notice under section 154(2) of the 1976 Act must be given within the period of 30 days after the day on which the reviewable decision comes to the notice of the person or such further period as the Commissioner allows. The material before me does not disclose that this temporal requirement was ever met. This is because the document which the applicant has submitted constitutes notice was submitted on 30 April 1984 prior to the decision made on 22 June 1984.

    CONSIDERATION

25. A decision of the Commissioner is not reviewable by the Tribunal under section 154 of the 1976 Act unless the decision has been confirmed or varied by under subsection (4) of section 154 of the 1976 Act.

26. The letter of the Commonwealth Superannuation Corporation dated 26 October 2021 does not purport to be a notice of a reconsideration of the 1984 decision of the Commissioner. This is because the Commonwealth Superannuation Corporation in its letter does not purport to confirm or vary the decision of the Commissioner. There is no mention in the letter of any request by the applicant for reconsideration of the decision of the Commissioner dated 22 June 1984.

27. The Commonwealth Superannuation Corporation stated the following in its letter:

    CSC cannot treat a person as retired on invalidity grounds unless the employer has retired the person on that basis; or unless CSC invokes the powers in section 7(2) of the Superannuation Act 1976 to treat a person as having a Retrospective Invalidity Retirement.

    The Commonwealth Superannuation Corporation goes on to state in its letter:

    Your application for deemed retirement on the ground of invalidity (retrospective invalidity retirement) under section 7(2) of the Superannuation Act 1976 was considered by the CSS Board on 7 December 1995. The CSS Board declined your application and provided comprehensive reasoning behind this decision, which is enclosed.

28. The applicant has not referred the Tribunal to any evidence which shows that the Commonwealth Superannuation Corporation has reconsidered the decision of the Commissioner dated 1984 and has confirmed or varied the decision of the Commissioner under sub-section (4) of section 154 of the 1976 Act.

29. I do not consider that the letter of the Commonwealth Superannuation Corporation dated 26 October 2021 constitutes a reconsideration of the 1984 decision. It appears that another decision that the applicant is aggrieved about, was the decision of 7 December 1995 in which the CSS Board declined the application of the applicant for retrospective invalidity retirement. It is apparent from the letter dated 26 October 2021 from the Commonwealth Superannuation Corporation that there was no reconsideration of that decision.

1. The applicant was advised in the letter from the Commonwealth Superannuation Corporation, dated 26 October 2021 that there is a legislative requirement (in section 153AP of the 1976 Act) for there to be new evidence. On 23 November 2001 the applicant indicated that he could not provide any new evidence. The Corporation in the letter dated 26 October 2021 made it clear that the recent correspondence of the applicant to the Corporation was not a request for the reconsideration of the decision of 7 December 1995. The Corporation also then advised him that he did not provide any relevant new evidence.

2. Another decision that the applicant is aggrieved about is the decision of 26 August 1997 which was the subject of a previous application.[10] The applicant was also previously advised of the need to provide new evidence if he sought reconsideration of that decision. On
   

   [10]    Barry Frederick Grice and Commissioner of Superannuation [1998] AATA 531.

   [11]    Barry Frederick Grice and Commissioner of Superannuation [1998] AATA 531 at [13].

   [12]    Barry Frederick Grice and Commissioner of Superannuation [1998] AATA 531 at [13]-[14].

   4 January 1996 the applicant was advised that a decision of the then CSS Board can only be reviewed upon payment of the then prescribed fee, as well as the provision of further evidence which had not been taken into account previously.[11] If he wished to pursue a reconsideration of that decision, in accordance with the then legislative regime, these requirements had to be complied with. The Tribunal has previously found that the applicant did not comply with these requirements.[12]

3. I should mention that it does not appear that the applicant had ever made a timely election to preserve his benefits as a CSS member under section 137 of the 1976 Act.[13]

   [13]    Cf., Liddle and Commissioner for Superannuation (1991) 25 ALD 307.

4. If the applicant was to succeed in gaining invalidity retirement in respect of his retirement from Telecom on 13 March 1984, any invalidity pension would have been cancelled on

   
   

   4 August 1986 by the operation of section 76(1) of the 1976 Act. On that date the applicant again became an eligible employee and a CSS member when he was employed by the Department of Social Services after having passed another medical examination by the Commonwealth Medical Officer who assessed the applicant as being fit for work. The Tribunal could not make a nugatory decision.

5. I decided on 11 January 2022 to not to have a hearing before exercising the jurisdiction of the Tribunal under section 42A(4) of the Administrative Appeals Tribunal Act 1975 to dismiss the application of the applicant. I outline my reasons why I decided to not have a hearing.

6. The Registry of the Tribunal wrote to the applicant on 21 December 2021 to advise him that the Tribunal might hold a hearing to decide if the Tribunal can review his application. The applicant in his letter dated 26 December 2021 had responded that “the Tribunal’s interest in a fourth jurisdiction hearing is sheer lunacy”. Also, in his letter dated 30 December 2021 the applicant remarked: “For the Tribunal to go to a fourth jurisdiction hearing there has to be clearly visible deficiency in the application before it, and that is not the case”. It is clear that the applicant had considered that a jurisdiction hearing was not of utility. He certainly did not agree that the Tribunal should convene a jurisdiction hearing.

7. Whilst having a hearing would, in my opinion, be in fulfilment of the statutory function of the Tribunal to promote public confidence in the decision-making of the Tribunal,[14] I decided not to have a hearing. I had regard to the fact that the applicant, in his submissions, has made aspersions about previous decisions of the Tribunal. I was also mindful that the applicant did not attend the last jurisdiction hearing before Deputy President Hack SC. The applicant’s failure to appear at this hearing is noteworthy given that he had received advanced notice of the hearing date and time, was in contact with the Tribunal about the hearing date, and confirmed he had no conflicting appointments. In his written reasons, Deputy President Hack SC noted the applicant confirmed with the Tribunal that the jurisdiction hearing did not conflict with any pre-existing appointments.

   [14]    Administrative Appeals Tribunal Act 1975, s 2A(d).

8. The Tribunal is required to act in a manner which is “fair, just, economical and quick”.[15]  I was conscious that having a jurisdiction hearing may have involved the Commonwealth Superannuation Corporation in additional expense if the Corporation were advised of the application. I was also mindful that the statutory requirement of the Tribunal to act quickly also required the Tribunal to dismiss an application which did not disclose a reviewable decision.

   [15]    Administrative Appeals Tribunal Act 1975, s 2A(b).

9. There had already been three decisions of the Tribunal in which it was decided that the decision of the Commissioner of Superannuation on 22 June 1984 to provide him with a lump sum of his accumulated contributions was not a reviewable decision. There was no material change in circumstances which would, in my opinion, make that decision reviewable.

10. In its letter dated 21 December 2021 the Registry of the Tribunal advised the applicant that the Tribunal may dismiss the application if he had not shown why the Tribunal can review the decision. The applicant was asked to respond to this invitation within 14 days after he received the letter. The applicant was put on notice that if he was unable to show within that time period why the Tribunal can review the decision, then the Tribunal can dismiss his application.

11. The applicant has not provided any cogent reasons within the required period of 14 days to indicate why the Tribunal did have jurisdiction to review the decision of the Commissioner of Superannuation on 22 June 1984 and the decision of the Commonwealth Superannuation Corporation on 26 October 2021.

    DECISION

12. For these reasons, the Tribunal is satisfied that the decision of the Commissioner on

    
    

    22 June 1984 and the decision of the Commonwealth Superannuation Corporation on

    
    

    26 October 2021 is not reviewable by the Tribunal. I dismiss the application pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975.

I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

.............................[SGD]........................................

Associate

Dated: 15 February 2022