Hamilton and Commissioner for Superannuation

[2003] AATA 122

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 122

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2002/658

GENERAL ADMINISTRATIVE  DIVISION		)
Re		IAN HAMILTON

Applicant

And COMMISSIONER FOR  SUPERANNUATION

Respondent

DECISION

Tribunal Deputy President, Don Muller

Date7  February 2003

PlaceBrisbane

Decision The application for an extension of time pursuant to section 29(7) of the Administrative Appeals Act 1975 for the review of the Respondent’s reconsideration dated 30 November 1992 is refused.

............Signed..................................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

EXTENSION OF TIME – applicant withdrew application – new application for review seven years later – whether acceptable explanation of delay- whether merits of the case outweigh delay- whether prejudice to respondent- principles of extension of time.

Superannuation Act 1976 (Cth) s137 (1), s.154(2),(3),(4), (5) and (6), s 157 (1)

Administrative Appeals Tribunal Act 1975 (Cth) ss29 (7), 42A(1A)(1B)

Comcare v A’Hearn (1993) 45 FCR 441

Commissioner for Superannuation v Boardman (1994) 50 FCR 236 at 244

Liddle v Commissioner of Superannuation 14 AAR 456

Hunter Valley Developments Pty Ltd v Cohen (1984) 58 ALR 305

Re Mulheron and Australian Telecommunications Corporation (1991) 23 ALD 309

REASONS FOR DECISION

Deputy President Don Muller       

1.This is an application for an extension of time for the making of a second application to the Tribunal for a review of a decision of the Respondent dated 30 November 1992, not to grant a late election to preserve the Applicant’s superannuation benefits under section 157 (1) Superannuation Act 1976 (“the Act”).

2.The relevant background to this matter can be summarised as follows:

(i)Ian Hamilton, the Applicant, was born on 31 January 1940.

(ii)On 9 January 1956, he joined the then Postmaster-General’s Department as a Technician-in-Training.

(iii)The Applicant was accepted as a contributor to the Commonwealth Superannuation Scheme (“CSS”) on 21 September 1956.

(iv)The Applicant’s employment was later transferred to Telecom when that entity took over telecommunications operations from the Postmaster-General’s Department.

(v)By virtue of having been an “employee” for the purposes of the Superannuation Act 1922 (the superceded Act), the Applicant became an “eligible employee” for the purposes of the Superannuation Act 1976 (the Act), at the date of commencement on 1 July 1976.

(vi)In late 1980, the Applicant became somewhat disenchanted with Telecom.  He had applied for a promotion but the higher position “went to a Technician who only gained his qualifications without examination…”.  The Applicant was “greatly upset” at the time and he thought that it was “grossly unfair”..  He was based in Sydney at the time.

(vii)On 31 December 1980, the Applicant went on leave which he anticipated would last for 12 months.

(viii)The Applicant was accompanied on leave with his wife and children.  They spent most of 1981 in south east Queensland.

(ix)On 31 December 1981, the Applicant resigned his position at Telecom, while he was still on leave.  He then ceased to be an “eligible employee” for the purposes of the Act.

(x)On 7 January 1982 the Applicant completed the application form titled “Refund of Accumulated Contributions/Lump…